Criminal Procedure Outline

Spencer Compton Spring 2010

I. Regulating Charging Discretion of Prosecutors.....................................................................................10 A. Case Assignment...............................................................................................................................10 1. Vertical...........................................................................................................................................10 2. Horizontal......................................................................................................................................10 B. Degree of Control Asserted Over Discretion....................................................................................10 1. Assign experienced assistants to major areas of discretionary decision-making and allow basic autonomy............................................................................................................................................10 2. Utilize detailed guidelines..............................................................................................................10 C. Discretion Generally.........................................................................................................................10 1. Stages involving discretion............................................................................................................10 2. Factors to Consider (ABA 3-3.9)...................................................................................................10 3. Reasons to Decline.........................................................................................................................11 4. Selecting the Charge......................................................................................................................11 D. Limits on Decision Not to Prosecute................................................................................................11 1. Judicial Oversight..........................................................................................................................12 2. Other possible checks on discretion...............................................................................................12 E. Limits on Decision to Prosecute........................................................................................................13 1. Arbitrary Prosecution.....................................................................................................................13 2. Discrimination or Selective Enforcement: Equal Protection Test (Armstrong)............................13 -AND-........................................................................................................................................14 2. Vindictive Prosecution and Due Process.......................................................................................14 1. Pretrial/no bargaining: D must show actual vindictiveness..................................................................14 2. Bargaining stage: state may not directly retaliate but can forego lesser charge for higher one...........14 3. Post-trial, presumption of vindictiveness.............................................................................................14 4. Remedy is dismissal of higher charge..................................................................................................14 II. Bail and Pre-Trial Detention.................................................................................................................15 B. Rationale............................................................................................................................................15 1. In favor of bail...............................................................................................................................15 2. Against bail....................................................................................................................................15 3. Characteristics................................................................................................................................15 C. Procedures under Bail Reform Act...................................................................................................15 1. Personal Recognizance..................................................................................................................15 2. Supervised release with conditions (BRA 3142(c)(B)).................................................................15 3. Unsecured bond: conditions and promise to pay if you fail to appear...........................................16 4. Secured bond set by schedule........................................................................................................16 5. Judge may not impose a financial condition that results in detention (BRA 3142(c)(2)).............16 6. Detention if, after hearing, no combination of conditions is sufficient to assure appearance and safety of community (BRA (3142(e))................................................................................................16 D. Constitutional Right to Bail and Limits on Preventative Detention.................................................16 1. 8th Amendment..............................................................................................................................16 2. Substantive Due Process................................................................................................................17 3. Procedural Due Process.................................................................................................................17 III. Screening the Charge...........................................................................................................................17 A. Preliminary Hearing v. Grand Jury Screening..................................................................................17 1. Prosecution by Preliminary Hearing is an information; prosecution by GJ is an indictment........17 2. In Federal court, the 5th Amendment requires charging decision to be screened by a GJ............17

3. GJ is not a fundamental right and is not incorporated against the states through the 14th Amendment. States are not required to have any screening procedures: due process does not require state to adopt the institution and procedure of a grand jury. (Hurtado).............................................17 4. Pro-prosecution reasons for prelim................................................................................................18 5. Pro-defense reasons.......................................................................................................................18 6. Right to counsel in prelim, not in GJ (Coleman)...........................................................................18 7. Minimum constitutional requirements:..........................................................................................18 - If D is in custody before trial, 4th Amendment requires magistrate to do ex parte screening (Gerstein) 18 - If D is not in custody, no right to prelim or magistrate screening..........................................................18 B. Preliminary Hearings.........................................................................................................................19 1. Purpose: .........................................................................................................................................19 2. Rules..............................................................................................................................................19 3. Challenges......................................................................................................................................19 C. Grand Jury Basics .............................................................................................................................20 1. Procedure.......................................................................................................................................20 2. Secrecy Rationale (US v. Procter & Gamble) ..............................................................................20 3. Suggested reforms..........................................................................................................................20 4. Assessments of reforms.................................................................................................................20 D. Challenging the Grand Jury..............................................................................................................21 1. Composition...................................................................................................................................21 2. Evidentiary Limits.........................................................................................................................21 c. Rules/Statute: Must raise before trial and show significant influence on outcome (B of Nova Scotia) 22 - If after trial, must have affected outcome at trial (Mechanik)................................................................22 2. Secrecy Concerns..................................................................................................................................22 3. Prosecutorial Misconduct...............................................................................................................22 4. Remedies for Prosecutorial Violation of Statute or Rule...............................................................22 5. Motion to Dismiss an Indictment is not immediately appealable via interlocutory appeal (Midland Asphalt)..............................................................................................................................23 IV. Joinder.................................................................................................................................................23 A. Joining Offenses: Which May be Joined..........................................................................................23 1. Joining: Rule 8(a): the indictment or information may charge a D in separate counts if offenses are.......................................................................................................................................................23 2. Severance: Rule 14: If joinder of offense appears to prejudice a D or the government, the court may order severance of counts...........................................................................................................23 2. Should they be severed under Rule 14?................................................................................................23 a. Spillover prejudice................................................................................................................................23 i. But would evidence come in anyway?..................................................................................................23 ii. Are crimes simple and distinct?...........................................................................................................23 b. Inconsistent defenses: evidence on one charge is weak and he wants to testify on the other; is it distinct from other claims for severance? .................................................................................................23 B. Joining Defendants............................................................................................................................24 1. Rationale........................................................................................................................................24 2. Statutory Limits.............................................................................................................................24 3. Constitutional Limits.....................................................................................................................25

C. Joining Offenses: What Must be Joined............................................................................................25 1. Double Jeopardy: Same offenses must be joined or DJ will bar prosecution for the 2nd offense ............................................................................................................................................................25 2. May the court sever: spillover prejudice or inconsistent defenses?.....................................................25 3. Must offenses be joined? Same elements? If different V, fact necessarily determined? ..................25 4. Std on appeal for misjoinder is harmless error (Lane).........................................................................25 2. Collateral Estoppel/Claim Preclusion ...........................................................................................25 V. Regulating Delay..................................................................................................................................25 A. Interests.............................................................................................................................................25 1. Advanced by speedy trial...............................................................................................................25 2. Advanced by delay.........................................................................................................................26 B. Constitutional Limits.........................................................................................................................26 1. Prior to charge (Lovasco)...............................................................................................................26 2. Delay between charge and trial:.....................................................................................................26 C. Statutory Regulation: Speedy Trial Act............................................................................................27 1. Starting the Clock..........................................................................................................................27 2. Restarting the clock........................................................................................................................27 3. Isolate periods of delay..................................................................................................................27 4. Calculate time: if over time period, violation................................................................................28 5. Remedy..........................................................................................................................................28 VI. Right to Counsel..................................................................................................................................29 A. Constitutional Right..........................................................................................................................29 1. When Does Right to Counsel Apply?............................................................................................29 2. For What Types of Cases Is Counsel Required?...........................................................................30 B. Waiver and Self-Representation........................................................................................................30 1. There is a historical and constitutional right to represent oneself at trial (Farretta)......................30 2. Limits.............................................................................................................................................30 C. Denial of Counsel..............................................................................................................................31 1. Actual or constructive denial of the assistance of counsel presumed to result in prejudice..........31 2. Interference: prejudice presumed...................................................................................................31 3. Ineffective Assistance of Counsel (Strickland)..............................................................................31 4. Actual conflict of interest, prejudice presumed (Cuyler) because counsel breaches duty of loyalty ............................................................................................................................................................31 D. Reforming Indigent Defense.............................................................................................................32 1. State structures...............................................................................................................................32 2. Some rights should not be waivable: procedures provide little protection because they can be waived, reform must come through political reform ........................................................................32 3. Tension between Court mandated procedural rights and reality of funding, crime rates, and crime definitions (Stuntz); underfunding, overcriminalization, and oversentencing have increased as procedure has expanded.....................................................................................................................32 VII. Access to Evidence............................................................................................................................33 A. Introduction.......................................................................................................................................33 1. Rationales.......................................................................................................................................33 2. Models............................................................................................................................................33 3. Disclosure always made subject to possible restriction through judicial issuance of a protective order on sufficient showing (Rule 16)............................................................................................33

B. Defendants Constitutional and Statutory Rights to Discover Government Evidence.....................33 1. Prosecutors has a constitutional duty to disclose exculpatory evidence reasonable likely to affect the outcome at trial or undermine confidence in the result (Brady; Bagley).....................................33 2. Defendants Oral Statements, 16(a)(1)(A).....................................................................................34 3. Defendants Written or Recorded Statements, 16(a)(1)(B)...........................................................35 4. Statements to Undercover Agents are not discoverable................................................................35 5. Witness lists...................................................................................................................................35 6. Statements of Others......................................................................................................................35 7. Ds Prior Record, 16(a)(1)(D) discoverable upon Ds request if in possession, custody, or control or if P should know record exists ......................................................................................................36 8. Documents and Objects, 16(a)(1)(E).............................................................................................36 9. Expert Reports, Discoverable under 16(a)(1)(F)...........................................................................36 10. Police reports...............................................................................................................................36 11. Government reports memoranda or internal documents..............................................................37 12. Depositions..................................................................................................................................37 C. Governments Rights to Discover Defendant Evidence...................................................................37 1. Rationale........................................................................................................................................37 2. Limits.............................................................................................................................................37 3. Notice of Defenses.........................................................................................................................37 4. Witness Lists..................................................................................................................................38 5. Witness Statements .......................................................................................................................38 6. Documents and Tangible Objects..................................................................................................39 7. Scientific reports............................................................................................................................39 D. Remedies for Discovery Violations..................................................................................................39 1. Violations by the Prosecution........................................................................................................39 2. Violations by the Defendant..........................................................................................................40 E. Governments Constitutional Duty to Preserve Evidence.................................................................40 1. Access to witnesses........................................................................................................................40 2. Undercover agents.........................................................................................................................41 3. Preservation/Destruction of Physical Evidence.............................................................................41 4. Sanctions........................................................................................................................................41 VIII. Pleas and Bargaining........................................................................................................................41 1. Rule 11: plea agreement may specify that government will..........................................................41 2. ABA Standards 14-1.8: Appropriate for the court to approve sentence concessions where.........42 3. Pros for P........................................................................................................................................42 4. Pros for D.......................................................................................................................................42 5. Problems........................................................................................................................................42 B. Due Process: Intelligent and Voluntary............................................................................................43 1. Knowing and Intelligent................................................................................................................43 2. Voluntary Examples.......................................................................................................................43 3. When Plea May be Involuntary.....................................................................................................44 C. Breach and Remedies for Breach......................................................................................................44 1. Breach by Prosecution...................................................................................................................44 2. Remedy for Prosecution Breach....................................................................................................45 3. Breach by Defendant......................................................................................................................45 D. Judges Role......................................................................................................................................45

1. Rule 11:..........................................................................................................................................45 2. If judges believes D was coerced into waiving or that waiver was otherwise involuntary...........45 3. If judge disagrees with the charge bargain (too lenient, too harsh, wrong charge), he has very little power to second-guess...............................................................................................................46 4. If judge disagrees with sentence....................................................................................................46 5. Where D waives appeal rights: courts are divided.........................................................................46 6. Where there is no factual basis for the plea...................................................................................46 IX. Trial by Jury........................................................................................................................................46 A. Scope of the Right to Jury.................................................................................................................46 1. Rationale: ......................................................................................................................................46 2. Waiver............................................................................................................................................46 3. For What Crimes?..........................................................................................................................46 4. Sentencing......................................................................................................................................47 5. Size.................................................................................................................................................47 6. Unanimity......................................................................................................................................47 7. Nullification...................................................................................................................................47 8. Legally Inconsistent Verdicts........................................................................................................47 9. Juror misconduct ...........................................................................................................................47 B. Selecting the Venire: Cross-Section Right........................................................................................48 1. Right to fair cross section is fundamental (Williams)...................................................................48 2. Federal Jury Selection and Service Act of 1968............................................................................48 3. Test for 6th Amendment cross-section violation (Duren).............................................................48 4. Equal Protection Challenge (6th Amendment easier to prove).....................................................48 C. Selecting the Jury from the Venire: Equal Protection.......................................................................49 1. For Cause Challenges....................................................................................................................49 2. Questioning the Jurors...................................................................................................................49 3. Peremptory Strikes.........................................................................................................................49 4. Equal Protection Challenge to Peremptory Strikes (Batson).........................................................49 X. Trial Rights...........................................................................................................................................50 A. Presence............................................................................................................................................50 1. Rationale........................................................................................................................................50 2. D may lose constitutional right to presence if...............................................................................50 3. Which proceedings?.......................................................................................................................50 4. Court may not use visible shackles to restrain D during trial (Deck) ...........................................50 B. Confrontation....................................................................................................................................51 1. The 6th Amendment bars the introduction of testimonial hearsay (Crawford).............................51 C. Not to Testify....................................................................................................................................51 1. 5th Amendment right to be free from compelled testimony..........................................................51 2. Jury may not be instructed to infer and prosecutor may not argue guilt from Ds silence (Griffin) ............................................................................................................................................................51 3. Sentencing judge is also not allowed to draw adverse inferences from silence at sentencing (Mitchell)...........................................................................................................................................51 4. Prosecutor may not comment on Ds silence.................................................................................51 5. D has a constitutional right TO testify (Rock)...............................................................................51 D. Limits on Argument..........................................................................................................................52 1. Test is whether Ps comments so infected the trial with unfairness as to make the resulting

conviction a denial of due process (Darden v. Wainwright).............................................................52 XI. Sentencing ..........................................................................................................................................53 A. Introduction to Theories....................................................................................................................53 1. Competing ideals: individualization v. equity ..............................................................................53 2. Rehabilitation.................................................................................................................................53 3. Deterrence......................................................................................................................................53 4. Incapacitation.................................................................................................................................53 5. Retribution.....................................................................................................................................53 B. Constraints on Sentencing Discretion...............................................................................................53 1. Prosecutors Discretion..................................................................................................................53 2. Of judges........................................................................................................................................53 C. Limits on Sentencing Info.................................................................................................................53 1. Judge can consider almost anything..............................................................................................54 2. But he may not...............................................................................................................................54 D. Rights at Sentencing..........................................................................................................................54 1. Right to be present.........................................................................................................................54 2. Right to assistance of counsel (Mempa v. Rhay)...........................................................................54 3. Right to notice................................................................................................................................55 4. Right to present evidence...............................................................................................................55 5. No right to confront witnesses.......................................................................................................55 E. Burden of Proof for Sentencing Factors............................................................................................55 1. Element needed for conviction: P has burden of proving beyond reasonable doubt.....................55 - Except criminal history (Almendarez-Torres).......................................................................................55 2. Affirmative defense at trial: D has burden by preponderance.......................................................55 3. Facts that lead judge to impose a higher sentence within the sentencing range: P has burden by preponderance (Williams)..................................................................................................................55 4. Fact of prior conviction that raises sentence max: P has burden by preponderance (AlmendarezTorres)................................................................................................................................................55 5. Fact mandating higher minimum: P by preponderance (McMillan).............................................55 6. Fact raising statutory max: Must be proven to a JURY beyond a reasonable doubt (Apprendi). .55 7. Fact raising max sentence that would be authorized by conviction alone: P must prove to JURY beyond a reasonable double (Blakely; Ring; Booker I).....................................................................56 8. A fact permitting consecutive sentences for multiple offenses: P must prove by preponderance (ICE) .................................................................................................................................................56 XII. Double Jeopardy.................................................................................................................................56 A. Attachment........................................................................................................................................56 1. Bench trial: attaches when evidence is received and the governments case begins (document or first witness sworn.............................................................................................................................56 2. Jury Trial: When jury is sworn (Crist)...........................................................................................56 3. Guilty Plea: Once the plea is accepted by the judge......................................................................56 B. Reprosecution Following Mistrial.....................................................................................................56 2. What was the disposition?....................................................................................................................56 a.i. Mistrial on Ds motion no DJ..........................................................................................................56 a.ii. Mistrial on P: DJ unless manifest necessity......................................................................................56 b. Acquittal DJ bar.................................................................................................................................56 c. Conviction overturned on appeal..........................................................................................................56

i. Evidence DJ bar..................................................................................................................................56 ii. Procedural no bar...............................................................................................................................56 d.i. Dismissal on evidence, insanity, entrapment DJ bar.......................................................................56 d.ii. Dismissal on procedure no bar.......................................................................................................56 3. If acquittal or standing conviction, cannot bring new prosecution for same offense...........................56 1. Where D did not consent or request mistrial, DJ bars unless there was manifest necessity in granting mistrial.................................................................................................................................56 2. If D consents or requests mistrial, he is considered to have waived DJ protection (Dinitz).........57 C. Reprosecution Following Acquittal..................................................................................................57 1. Double jeopardy attaches after an acquittal...................................................................................57 2. What counts as an acquittal............................................................................................................57 3. Unless D bribed the judge or jury (People v. Aleman, Ill.)...........................................................58 D. Reprosecution Following Conviction Overturned on Appeal...........................................................58 1. If D appeals convictions and it is reversed for insufficient evidence of one of the elements, double jeopardy bars retrial (Burks)..................................................................................................58 2. If D appeals and conviction is reversed for procedural error (anything other than insufficiency of the evidence), double jeopardy does not bar retrial (Ball).................................................................58 3. If court of appeals finds that trial judge shouldnt have let the evidence in and without it there is insufficient evidence, this DOES NOT bar retrial because it is a procedural error (admitting evidence) (Lockhart)..........................................................................................................................58 4. Where D is convicted of lesser offense, implies acquittal of greater (Green)...............................58 E. Reprosecution Following Dismissal..................................................................................................58 1. Pre-Trial dismissal does not bar reprosecution because DJ hasnt attached (Serfass)..................58 2. Dismissal based on Procedure (anything other than insufficient evidence or anything P can appeal) does not bar reprosecution (Ball)..........................................................................................58 3. Dismissal based on failure to rebut insanity or entrapment defense bars reprosecution (Burks; Scott)..................................................................................................................................................58 4. A dismissal for insufficiency of the evidence bars subsequent prosecution. When judges ruling represents a resolution in Ds favor on some or all of the factual elements of the offense charged (Sanabria; Scott).................................................................................................................................58 5. Dismissal following a jurys guilty verdict: no DJ bar (Wilson)...................................................58 F. Following Sentencing........................................................................................................................59 1. Where judge misconstrued sentencing law and government can appeal, no DJ (DiFrancesco)....59 2. But where jury decides not to impose the death penalty (Bullington), re-sentencing is barred....59 G. After Acquittal or Standing Conviction: ..........................................................................................59 1. Double Jeopardy: Same offenses must be joined or DJ will bar prosecution for the 2nd offense ............................................................................................................................................................59 2. Collateral Estoppel/Issue Preclusion .............................................................................................59 XIII. Review of Error by Appeal...............................................................................................................59 A. Source of Defendants Right to Appeal............................................................................................59 1. No constitutional right to appeal (McKane v. Durston)................................................................59 2. But if a state provides a right to appeal, the Constitution requires state to comply with DP and EP ............................................................................................................................................................59 B. Defendants Appeals.........................................................................................................................59 1. Can D appeal at this time?.............................................................................................................60 2. Did D expressly waive his right to seek relief based on this error? No relief unless error in

waiver or jurisdictional......................................................................................................................61 3. Did D forfeit right by pleading guilty? Except..............................................................................61 4. Did D forfeit right by failure to raise before the trial court in a timely appropriate manner?.......61 5. Was there error and can it be established under the relevant standard of review?........................61 6. Assuming error not waived or forfeited, relief? ...........................................................................62 C. Governments Right to Appeal.........................................................................................................63 1. No constitutional right to appeal....................................................................................................63 2. Federal system and most states allow prosecution appeal.............................................................63 3. Prosecutor may have more opportunities for interlocutory appeal because this is their only chance................................................................................................................................................63 XIV. Habeas Corpus..................................................................................................................................63 A. Basic Contours..................................................................................................................................63 1. Can only address federal claims, claiming that court violated federal law...................................64 2. Source of the right..........................................................................................................................64 3. Civil cases: apply rules of civil procedure.....................................................................................64 4. No right to counsel.........................................................................................................................64 B. Judicial Restrictions..........................................................................................................................64 1. No relief on 4th Amendment claims (Stone v. Powell).................................................................64 2. No enforcement of new rules declared after Ds appeal is final (Teague v. Lane)....................64 3. State procedural default bars federal habeas claims (Sykes): If you didnt raise a claim in accordance with state procedure, D is barred from habeas review unless D can show: ...................64 C. Statutory Limitations.........................................................................................................................64 1. 1 year statute of limitations, tolled by properly filed state post-convictions proceeding..............64 2. Claims must be exhausted and federal court may deny on the merits and dismiss with prejudice ............................................................................................................................................................65 3. Limited evidentiary hearings when facts were not developed in state court.................................65 4. Bars successive petitions except in limited circumstances............................................................65 5. Deferential standard of review.......................................................................................................65 6. Fast-track deadlines for capital cases (but no state has come up with a qualifying representation plan)...................................................................................................................................................65 D. Evaluating Merits of State Court Decision ......................................................................................65 1. Contrary to.....................................................................................................................................65 2. OR Unreasonable Application of...................................................................................................65

I. Regulating Charging Discretion of Prosecutors A. Case Assignment 1. Vertical a. Complaint once filed will be assigned to a specified case flow resulting in its eventual presentation in particular courtroom or before particular judge b. Single AP or team of AP will be assigned all cases docketed for judge or courtroom 2. Horizontal a. Revolves around each process step rather than individual case b. From one step to another a new prosecutor will take over B. Degree of Control Asserted Over Discretion 1. Assign experienced assistants to major areas of discretionary decision-making and allow basic autonomy 2. Utilize detailed guidelines a. Require assistants to justify decision in writing referencing them b. Require approval by select group of senior assistants C. Discretion Generally 1. Stages involving discretion a. Investigation: whether and how; if GJ used, what evidence should be presented? (i) Is there sufficient evidence to support? b. Immunity: Should some witnesses be granted immunity? (i) Reasons for not subjecting to criminal process? (ii) Conditioned upon participation in diversion program? c. Charging Decision (i) What offense or offenses? (a) d. Motion to Vacate after trial e. Discovery of New Evidence 2. Factors to Consider (ABA 3-3.9) a. Prosecutors reasonable doubt that the accused is in fact guilty b. Extent of the harm caused by the offense (need for retribution deterrence) c. Disproportion of the authorized punishment in relation to the particular offense or the offender d. Possible improper motives of a complainant e. Reluctance of the victim to testify f. Cooperation of the accused in the apprehension or conviction of others g. Availability and likelihood of prosecution by another jurisdiction h. Should NOT give weight to the personal or political advantages or disadvantages which might be involved or to a desire to enhance his or her record of convictions i. In cases which involve serious threat to the community, should not be deterred where juries have tended to acquit

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j. Should not bring a charge greater in number or degree than can reasonably be supported with evidence at trial or are necessary to reflect the gravity of the offense 3. Reasons to Decline a. Evidentiary problems (i) Search and seizure violation; uncooperative victim; witness unavailability or lack credibility b. Limited resources c. Community (i) Legislative over-criminalization; politically unpopular/lack of community support; jury may nullify; would lead to decreased respect for the law (ii) Discretion guided by effort to discern public needs and community concerns (more aggressive approach on crimes constituents worried about) d. Need for individualized justice; labeling a person a criminal, creating criminal record may do more harm than good (i) May set in motion course of events which will increase probability that person becomes or remains offender e. Other options (civil remedies, diversion programs) available (i) Diversion- program that may not involve incarceration (a)Less serious offense or first felony complaint (b)Counseling, career development, education and supportive treatment services (c)After responding for measurable period court or pros. asked to dismiss prior to trial and adjudication, if fails then resume where left off 4. Selecting the Charge a. Elements b. Evidence c. Victim wishes? (i) Under victim participation model of the criminal process victims should have veto power over charge brought, be able to determine charge, and challenge decision not to charge (ii) Federal (a)Granted right to confer with Govt attorney [18 USCA 3771(a) (5)] Nowhere specified must precede or concern charging decision (iii) State (a)Less than half have const. or stat. provision recognizing right Majority make apparent that consultation about initial charge is not contemplated D. Limits on Decision Not to Prosecute

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1. Judicial Oversight a. Attica: Courts are loath to review prosecutors decisions even if the statutory language makes prosecution mandatory (US Attorneys are authorized and required to institute prosecutions against) because (i) Courts do not want to become superprosecutors (ii) Do not want to compromise secrecy of GJ or accuseds reputation by making evidence file available to adversary (iii) Avoid abuse by persons seeking to have other persons prosecuted (iv) Difficult to establish a standard: when can a prosecutor halt an investigation? What evidentiary standard would be used? How much discretion? b. Cox: Courts cannot force a US Attorney to sign a federal indictment (i) Majority opined that affixing or withholding of signature by US Attorney on an indictment was a matter of exclusive executive discretion that could not be coerced or reviewed by court (ii) Three views (a)GJ finds probable cause but discretionary power of the US Attorney about whether to prosecute may depend on things completely outside of this Since cannot require to affix signature (since member of exec. when making decision not judicial) should not be required to prepare (b)GJ decision to indict should result in US Attorney being required to prepare any indictment they wish to consider or return and sign those that they return May refuse to go forward in open court, not in grand jury room (c)US Attorney must prepare but need not sign indictments Preparation of indictment as drafted with assistance of US Attorney would clearly reflect the conscientious conclusion of GJ When places signature on document, effectively initiates prosecution, thus requiring to do so would block discretion to prosecute as it would require affirmative step to stop it c. Armstrong: Prosecutors have relative competence to assess strength of the case, deterrence value, overall enforcement plan, and enforcement priorities 2. Other possible checks on discretion a. Fed.R.Crim.P. 48(a) (i) Requires leave of court to dismiss existing charges; but this does not give court authority before charge has been brought (Connors) (ii) Protect a against prosecutorial harassment (Rinaldi) b. Criminal Statutes (i) Courts have not interpreted them as mandatory (Attica) c. Grand Jury

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d. e.

f.

g. h.

(i) Most jurisdictions permit GJ to initiate pros. by indictment even though pros. opposes prosecution (a)Some require only that foreman signs (b)Others require prosecutor signature, similar to Rue 7 (ii) In other jurisdictions, GJ cant act on its own because the prosecutor has to sign the indictment (Cox) Attorney General (i) In states, AG may bring charge where DA declines to do (Johnson v. Pataki) Private Prosecution (i) Rarely available (cf) (a)Individual cannot institute criminal proceeding with pros. approval because SOP violation and DP (People v. Municipal) (b)Private action in the name of citizen for criminal contempt did not violate plea bargain as it wasnt by the state (In re Robertson) Special Prosecutor (i) Appointment is invalid as improper interference with prosecutors discretion (Venhaus v. Brown) (ii) Fed. statute requiring appointment of independent counsel to complete investigation and conduct prosecution valid as AG had substantial oversight (Morrison v. Olson) Electoral system (i) Public shame and civilian oversight could impact next election Internal control in the office may allow supervisor to prosecute where individual DA does not (i) Condition promotion (ii) Pay on charging performance

E. Limits on Decision to Prosecute 1. Arbitrary Prosecution a. May violate equal protection if doesnt pass rational basis test (i) Irrational Distinction (a)No rational basis for enforcing bell on a bicycle law only against prostitutes (Kail) (ii) Desuitude (a) Civil law doctrine rendering a statue abrogated by reason of its long and continued non-use (b)Consistent and growing calls for invocation in academic world, rejected by judges Issues of how long is must be dormant, and statutes charging only rarely occurring crimes (Elliot) (iii) Random Selection 2. Discrimination or Selective Enforcement: Equal Protection Test (Armstrong) a. Requirement for Proving Claim (Must show by Preponderance of the Evidence)

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(i) D is a member of a protected class (Race: Armstrong/McKlesky, Nationality, Lesser degree gender) -OR(ii) Exercised a fundamental right (1st Amendment: Wayte (vocal draft resistor), Walker (whistle blower), Aguilar (actively opposing govt policy)) -AND(i) Discriminatory effect (a)Similarly situated persons with this feature were NOT prosecuted -AND(ii) Discriminatory purpose (a)D would not have been prosecuted but for race/gender/exercise of right Statistics not enough: 24/24 cases with black Ds not enough (Armstrong); Statistical trend showing that P seeks death penalty in 70% of cases involving black Ds and white Vs (McKlesky) b. Requirement for Obtaining Discovery (Armstrong/Bass) (i) must make a credible showing of: (a)Discriminatory effect; and (b)Discriminatory purpose c. Selective enforcement, ok: against vocal lawbreakers (Wayte; Ojala) or only grocery stores (Taylor) is an appropriate use of prosecutorial discretion; unless they can show purposeful discrimination d. Improper motives short of discrimination, ok: Annala charging child molester 5 years after the crime ok; Walker enforcing multiple dwelling law only against D who earlier complained about building code violations ok so long as she actually violated a valid law 2. Vindictive Prosecution and Due Process a. Where D exercises constitutional right to jury trial pre-trial (Goodwin) no presumption of prosecutorial vindictiveness; D must show actual vindictiveness (Goodwin) (i) Prosecutor may have discovered new evidence or reconsidered; initial 1. Pretrial/no decision should not freeze future conduct bargaining: D must (ii) Proof of actual vindictiveness would establish a violation show actual (iii) Remedy is to get rid of vindictiveness and drop higher charge vindictiveness b. Where D exercise right to go to trial (declining guilty plea), P may increase 2. Bargaining stage: charges (Bordenkircher v. Hayes) state may not directly retaliate but can (i) Guilty pleas essential to justice system forego lesser charge (ii) State may deter D from exercising rights but may not retaliate; for higher one. vindictiveness permissible if its a choice 3. Post-trial, (a)Court approved practice of charging low and threatening high if presumption of do not accept plea bargain vindictiveness 4. Remedy is (iii) Must be probable cause for the higher charges

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(a)Does not matter if actual vindictiveness since choose to turn down the bargain, and there is standing for charges (iv) Dissent argued that P should have to bring higher charge first and then lower if desired c. Where D exercises right to appeal post-trial, presumption of vindictiveness (i) Prosecutor may not upwardly revise the Ds charge to make the same conduct punishable by a higher penalty (Blackledge v. Perry) (ii) Like Pearce: Judge may not impose harsher sentence to discourage appeals (iii) Presumption dispelled only by explanation that would dispel a reasonable persons belief that charges were motivated by vindictiveness (from standpoint of ) (iv) However, does not preclude if state shows that it was impossible to proceed on the more serious charge at the outset (new evidence coming to light that adjusted interpretation) II. Bail and Pre-Trial Detention A. B. Rationale 1. In favor of bail a. Make sure they show up b. Prevent danger to community 2. Against bail a. Presumption of innocence b. Imprisoned for longer than sentence c. Need to prepare defense: accuracy, equality d. Imprisonment costs money for the state e. Persons family and job f. More likely to falsely admit to crime if faced with imprisonment 3. Characteristics a. 28% released on PR; 66% bail set; 6% held without bail b. Timing: of all those released, 48% released within 1 day; 73% within 1 week; 90% within 1 month C. Procedures under Bail Reform Act 1. Personal Recognizance a. Subject to condition that no new crimes committed and that person cooperate in collection of DNA sample if authorized 2. Supervised release with conditions (BRA 3142(c)(B)) a. No new crimes b. Least restrictive further condition or combination of conditions that may include: (i) Custody of designated person who will assume supervision and report any violation and assure that person will not pose a danger (ii) Maintain employment (iii) Maintain or commence educational program (iv) Restrictions on personal associations, abode, or travel (v) Avoid contact with alleged victim and potential witnesses

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(vi) Reporting (vii)Curfew (viii) Refrain from possessing firearm or weapons (ix) Refrain from excessive alcohol or drug use (x) Property forfeiture agreement (xi) Custody following employment, school, etc 3. Unsecured bond: conditions and promise to pay if you fail to appear 4. Secured bond set by schedule a. Full cash b. Property c. Surety d. 10% deposit to the court e. Bonding agent: bounty hunters are non-state actors and not subject to constitutional limits 5. Judge may not impose a financial condition that results in detention (BRA 3142(c)(2)) a. Compare to states 6. Detention if, after hearing, no combination of conditions is sufficient to assure appearance and safety of community (BRA (3142(e)) a. Rebuttable presumption of detention if: (i) if crime of violence for which a max term of 10 years or more or crime for which life or death is penalty or if accused felon has been convicted of two prior >10 year offenses, or felony with minor victim (ii) Or if Government/court shows that case involves serious flight risk or risk that D will obstruct justice, threaten, injury, or intimidate a prospective witness or juror b. Hearing should afford person opportunity to testify, present witnesses, crossexamine witnesses, present info by proffer (i) Rules of evidence do not apply c. Consider nature and circumstances of the offense, weight of the evidence, history and characteristics of the person (i) Character, mental and physical condition, ties, employment, financial, length of residence in community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history and record concerning past appearances (a)D has burden of producing evidence of ties and past record but P has burden of proof concerning likelihood of spearing (Van Atta v. Scott) (ii) Whether person was on probation or parole at time of arrest d. Interlocutory appeal available D. Constitutional Right to Bail and Limits on Preventative Detention 1. 8th Amendment a. Incorporated against the states (Schilb v. Kuebel) b. Bail set higher than amount reasonably calculated to assure appearance is excessive under the 8th Amendment (Stack v. Boyle) c. Fixing of bail must be based on individualized assessment; need for bail cannot be inferred from nature of charge/indictment alone (Stack v. Boyle)

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(i) If unusually high bail is required, Ds rights should be preserved by holding evidentiary hearing d. There is no requirement that a bail be set; if it is set, it must not be excessive relative to stated goals and must be determined according to BRA procedures (Salerno) (i) Detention is regulatory not punitive 2. Substantive Due Process a. Detention without bail does not violate because it is regulatory and no punitive (Salerno) (i) Legislative intent to advance regulatory goal (ii) Fit between statute/action and regulatory goal 3. Procedural Due Process a. Nothing inherently uncalculable about prediction of future violence (Salerno) III. Screening the Charge A. Preliminary Hearing v. Grand Jury Screening 1. Prosecution by Preliminary Hearing is an information; prosecution by GJ is an indictment. 2. In Federal court, the 5th Amendment requires charging decision to be screened by a GJ a. Fed.R.Crim.P. 5.1 provides preliminary hearing in all federal felony cases, to be held within a reasonable time following initial appearance, but not later than: (i) The 10th day or (ii) The 20th day following initial appearance if the arrested person is released from custody b. Federal system allows prelim unless, prior to the date fixed for the prelim, an indictment is returned (i) Has essentially eliminated all preliminary hearings because US Attorney can bypass the hearing by taking case to grand jury that sits daily; magistrate could not undermine GJs finding of probable cause 3. GJ is not a fundamental right and is not incorporated against the states through the 14th Amendment. States are not required to have any screening procedures: due process does not require state to adopt the institution and procedure of a grand jury. (Hurtado) a. Substantive due process does not protect an individual even against burdens of baseless prosecution without probable cause (Albright) b. States are only required to screen for probable cause if suspect is held in custody following arrest (Gerstein) c. However most states have some independent screening process: either GJ, prelim, or direct filing (i) 18 states require indictment for all felonies; prelim hearing within a specified period after arrest (but can be bypassed by indictment) (ii) 32 states permit felony prosecution to be brought by information

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4.

5.

6.

7.

(a)Prosecutors overwhelmingly choose to proceed by information (see section below) unless prelim would have protracted evidence, would lead to key defense discovery, or would force victim to testify too many times (b)A handful of information states allow direct filing: proceed without prelim Pro-prosecution reasons for prelim a. Allows better prep of witnesses (pro-P); put witness to the test of testifying b. Promoting Vs interest by presenting issue in a public forum c. Gaining D perspective as to events d. Witness ID of the subject e. Promoting public confidence in a sensitive prosecutorial decision f. May help P get to plea faster (pro P) g. Preserves testimony and Ds cross-examination protections for witnesses later unavailable for trial (pro-P) Pro-defense reasons a. Gives defense a discovery opportunity (pro D) b. Allows argument by counsel on bail or need for psych testing (pro D) c. May be the only screening before plea bargaining (pro D) d. It commits witness testimony for later impeachment (pro-D) Right to counsel in prelim, not in GJ (Coleman) a. Prelim is critical stage (i) Cross exam of critical witnesses (ii) Cement testimony for trial (iii) Discover statess case (iv) Early opp for psych exam or bail argument Minimum constitutional requirements: Grand Jury 1. Federal courts are required by 5th Amendment to screen charges through grand jury; states are not required 2. Where GJ charges - If person is not in custody, no screening under 4th Amendment - Even if in custody, GJ counts as screening, no need for additional screening 3. No right to counsel in the GJ

Preliminary Hearing or other Screening 1. States may use either Prelim or GJ to screen 2. Where prosecutor charges without GJ: - If D is in custody before trial, 4th Amendment requires magistrate to do ex parte screening (Gerstein) - If D is not in custody, no right to prelim or magistrate screening 3. Where prelim given, right to counsel (Coleman)

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B. Preliminary Hearings 1. Purpose: a. Determine whether there is sufficient evidence to bind the case over (i) Only between 2% and 335 of cases dismissed on prelim: but this number could depend on level of prosecutorial screening, utilization of GJ, caseload at trial level, use of plea bargains, whether D regularly insists on prelims, and whether P presents all key witnesses or just enough for standard b. D typically seeks other advantages of prelim unless the states case is actually weak (but may be advantageous to force a bench trial where states case is weak) 2. Rules a. Bindover standard: reasonable belief that offense committed and that D committed (Clark) (i) Some jurisdictions require prima facie standard: whether evidence, in light most favorable to the prosecution, could lead jury to find guilty BRD. But this is rare because of the timing of the hearing (10 days after arrest) b. Evidence (i) Recognize testimonial privileges (ii) Brady duty to turn over exculpatory evidence also applies (Mitchell) (iii) States vary on applicable rules of evidence (iv) Hearsay typically permitted; some states only allow limited hearsay (v) Many states do not recognize exclusionary rule for unconstitutionally obtained evidence c. Magistrate typically not allowed to weigh credibility (see Hunter, Colorado); but some states allow d. Many jurisdictions recognize defense right of subpoena; some require permission from magistrate (D will typically not choose to present witnesses though) e. D has right to counsel because it is a critical stage (Coleman v. AL) f. If charge is dismissed, prosecutor may still seek GJ indictment or refile charges and seek another hearing on the same evidence 3. Challenges a. Types of challenges (i) Denial of right to prelim (by accepting a faulty waiver) (ii) Magistrate erred in finding probable cause (iii) Erred in procedural ruling at the prelim b. Approaches to Assessing Error (i) Coleman approach (federal and some states): vacate conviction and remand for lower court to determine whether denial/error was harmless under Chapman; is D able to point to specific aspect of the trial where D was adversely impacted by having lacked counsel at prelim (a)State courts tend to assume error was harmless and require D to prove harm

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(ii) Per se harmless approach: most state courts (a)Like the GJ standard in Mechanik (iii) Jurisdictional defect approach: cannot be cured by subsequent trial and conviction = automatic reversal (a)Absence of proper bindover comparable to not filing a charge C. Grand Jury Basics 1. Procedure a. Indict on probable cause b. No judge or magistrate presiding c. GJ cant go forward without the US Attorney d. GJ transcripts are not public records e. GJ can ask a question of a witness as well as the prosecutor f. D/target does not have a right to counsel at GJ or to review charge (i) Even though preliminary hearing is a critical stage GJ review is not g. Double jeopardy does not attach; if GJ refuses to indict, prosecutor may try again h. Jurors, interpreters, court reporters, transcriber, or attorneys are sworn to secrecy; witnesses do not have secrecy obligation (FRCP 6(e)(2)) i. D can waive right to GJ and proceed by information (particularly if D is in jail and would be prejudiced by delay) 2. Secrecy Rationale (US v. Procter & Gamble) a. Avoid altering target who isnt in custody; prevent escape or destruction of evidence b. Prevent influencing or intimidation of grand jurors c. Encourage free disclosure by witnesses d. Protect the innocent (whiff of investigation can be damaging) 3. Suggested reforms a. Requiring court to fully inform jurors of independent authority (including nullification) b. Giving GJ its own counsel or ask court for legal advice c. Giving target the right to testify d. Requiring prosecutor to present available exculpatory evidence Forbidding use of unconstitutional evidence e. Prohibiting use of hearsay f. Requiring prima facie cases standard of proof g. Requiring affirmative vote of a supermajority of grand jurors h. Prohibiting resubmissions following decision not to indict i. Challenge procedure that requires court to review transcript 4. Assessments of reforms a. Basic problem is in very structure of grand jury and reform not enough; lay persons applying unfamiliar standard to one-sided presentation of the facts b. Supporters of GJ reject reforms because they argue GJ is highly effective (sounding board); brings laypersons sense of reality; strength is in controversial cases c. Courts typically downplay significance of the indictment process; or regard it as effective

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D. Challenging the Grand Jury 1. Composition a. Standing: Third-party standing where D has stake in the outcome, jurors have little opportunity to raise the challenge, and D shares interest in the outcome (i) Even white D has standing to challenge exclusion of black petit and grand jurors (Powers + Campbell) b. Discrimination in selection of GJ (i) Equal Protection: D must show deliberate discrimination in the selection of the array (venire) or make a prima facie showing which shifts burden to state to show discriminatory impact was not purposeful (Rose; Vasquez; see relief below) (ii) Batson challenges for composition of the grand jury allowed, but far less common in GJ c. Discrimination in selection of foreperson (i) Hobby: May only challenge selection of foreperson if Court selects someone from outside the randomly-selected pool (which changes the composition of the GJ) (a)Only a few states appoint outside foreperson (b)Only a few states give foreperson significant responsibility (ii) But after Campbell, not clear if this is good law because D could have brought EP challenge by showing purposeful discrimination against someone in GJ d. Personal bias of grand juror does not require reversal (Rule 6(b) doesnt give power) (i) But several state provide statutory bias objections: relatives of the victim, state of mind prevent impartiality, (ii) But D must make preliminary showing of likely prejudice to invade secrecy of GJ transcript e. Remedy: Discrimination on the basis of race during selection of GJ results in automatic reversal of the conviction, even if D was later convicted by fairlyselected jury (Rose) (i) Vasquez: Even on habeas, relief can be granted because GJ has power to charge greater/lesser offense, numerous or singular counts, capital or noncapital offense (ii) Nothing more damaging than discrimination (iii) Too hard to show if discrimination made a difference 2. Evidentiary Limits a. D may not challenge indictment based on hearsay evidence, insufficiency of the evidence, or incompetency of the evidence (Costello) (i) Allowing these challenges would create impermissible delay and create mini-trials (ii) History of allowing broad range of evidence into GJ (iii) Allowing challenge would harm benefits of secrecy (a)But secrecy concerns arent as potent because d can choose to abrogate secrecy that protects his reputation, witness has already been honest, jurors cant be influenced

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1. Basis for challenge a. Discrimination in composition: automatic reversal (Rose) b. Constitutional (structural, discrimination, pervasive problem): presume prejudice (Isgro) c. Rules/Statute: Must raise before trial and show significant influence on outcome (B of Nova Scotia) - If after trial, must have affected outcome at trial (Mechanik) 2. Secrecy

b. May not allege prosecutorial misconduct for failure to present exculpatory evidence: Courts have no supervisory power over the GJ and cannot dismiss indictment for failure to present exculpatory evidence to the GJ (Williams) (i) Rationale (a)GJ is functionally independent and not bound by constitutional rights like double jeopardy, right to counsel or procedural rights (exclusionary rule, hearsay rules) (b)GJ is accusatory not adjudicatory (c)Could lead to D presenting a defense (ii) Some evidence claims may still exist after Williams (a) If D demonstrates that misconduct is long-standing or common problem in the district and Ps actions caused actual prejudice for the D (Boettcher) c. May not challenge based on unconstitutionally obtained evidence (Calandra) (i) But USAO manual directs attorneys not to present evidence he knows was obtained as a direct result of the constitutional violation d. Remedies (i) Hearsay: No relief (Costello) (ii) No evidence: no relief (Costello) (iii) Failure to present exculpatory: No relief unless there is a longstanding patter or common problem in the district (Williams) (iv) Illegally obtained evidence: No relief (Calandra) 3. Prosecutorial Misconduct a. Constitutional Violation: Always try to argue this! (i) Where structural protections have been so compromised as to render proceedings fundamentally unfair, allow presumption of prejudice to the D (Isgro) (ii) But no constitutional error where charging judge told grand jurors (1) not to judge the wisdom of the law and (2) that P is presumably acting in good faith (Navarro-Vargas) (a)Does not undermine jurors independence b. Statutory or Rules violation (FRCrP 6): Dismissal only if error had substantial influence on outcome of the proceeding and it is challenged prior to conviction (i) Having two witnesses in at the same time (Mechanik) (ii) Evidentiary violations rarely rise to the level of misconduct unless it is a pervasive problem (Williams) c. Ethics violation (i) US Attorneys Manual prohibits making argument about Ds silence 4. Remedies for Prosecutorial Violation of Statute or Rule a. To gain court ordered discovery to prove misconduct in the GJ: D must show that a ground may exist to dismiss the indictment because of a matter that occurred before the GJ (Rule 6(e)3(E)(ii)) (i) Must produce affidavit of friendly witness or portion of transcript otherwise released

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b. To Prove Error if Prior to Conviction (Bank of Nova Scotia), D must show error was not harmless/prejudicial impact: dismissal appropriate only if it is established that the violation substantially influenced the GJs decision to indict or if there is grave doubt that the decision to indict was free from substantial influence of such violations (i) Judge will probably just take motion under advisement until after conviction c. Post-conviction (Mechanik): Consider error in light of conviction: any error in GJ is harmless per se unless it affected the outcome of the trial (i) Even if indictment was faulty, a jurys determination of guilt beyond a reasonable doubt cures any defect 5. Motion to Dismiss an Indictment is not immediately appealable via interlocutory appeal (Midland Asphalt) IV. Joinder A. Joining Offenses: Which May be Joined 1. Joining: Rule 8(a): the indictment or information may charge a D in separate counts if offenses are a. Of the same or similar character (i) Allowing offenses that took place at a different time and place is controversial b. Are based on the same act or transaction (i) Look for time between offenses usually limited to days or even hours c. Are connected with or constitute parts of the common scheme or plan (i) Not a question of overlapping evidence; look for factors connecting two offenses: embezzle to cover up fraud, steal a car to use after a robbery d. Reasons to join (i) Economy (ii) Finality for the D (iii) Constitution may require (iv) Easier on the witnesses (v) Concurrent sentences 2. Severance: Rule 14: If joinder of offense appears to prejudice a D or the government, the court may order severance of counts a. Spillover prejudice (Drew): If charged with multiple crimes, jury may infer 1. Can charges be joined criminal disposition; worse crime makes D appear worse than if only minor under Rule 8? crime charged 2. Should they be (i) But no severance required if: severed under Rule 14? (a)Rules of evidence would allow the jury in the trial of charge A a. Spillover to hear evidence of charge B anyway, even if two were tried prejudice separately i. But would Motive, intent, absence of mistake, common scheme or evidence come in anyway? plan where proof of one tends to establish the other, ii. Are crimes simple identity of the person charged with the commission of and distinct? the crime
b. Inconsistent defenses: evidence on one charge is weak and he wants

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(b)Even if evidence of charge B would not be admissible, if the two offenses are simple and distinct Likelihood of jury confusion; does P refer to crimes at the same time or use them interchangeably b. Inconsistent defenses (Cross): Forces D to choose between inconsistent defenses (i) D must proffer specific testimony that he wants to give in one case and specific reason why he doesnt ant to testify in the other; otherwise any D charged with multiple counts could move to sever (ii) Court should balance: evidence against D for each offense, availability of defense evidence other than proffered testimony, plausibility of testimony, effects of demeanor impeachment and cross (iii) Notoriously difficult to apply before trial; appellate review standard is abuse of discretion B. Joining Defendants 1. Rationale a. Pro: Economy b. Con: Prejudice, constitution may require severance; joinder may compromise confrontation rights 2. Statutory Limits a. Rule 8(b): Two or more defendants may be charged together if: (i) Same act or transaction (ii) Same series of acts or transactions (a)But even if the conspiracy charge is dropped, can still be charged together (Schaffer) (iii) Note: no similar character provision: even if closely-related in time or have overlapping evidence, different offenses cant be joined unless they are part of the same act or transaction b. Rule 14: if joinder appears to prejudice D, should be severed (typically argued by least culpable D) (i) Complexity of the evidence is such that the trier of fact probably will be unable to distinguish the evidence or apply the law intelligently (a)Where proof is carefully compartmentalized and there is no prejudice, joinder not an error (Shaffer) (ii) Because several defendants have antagonistic defenses (a)Not entitled to severance merely because they have a better chance of acquittal separately or have conflicting defenses; only if serious risk that join trial would compromise a specific trial right or prevent the jury from making a reliable judgment (Zafiro) Evidence that jury should not consider against one that would not be admissible if D tried alone But just because one D is capital and the other is not, not entitled to severance (iii) Otherwise impossible to call a co-D as a witness

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(a)Must show that he would call the co-D at a severed trial, that the co-D would testify, and that the testimony would be favorable to the D (Vigil) c. However, failure to sever (even clear error) can be harmless (Lane) 3. Constitutional Limits a. Confrontation: Cannot introduce co-Ds confession at joint trial when co-D doesnt testify (Bruton); limiting instruction not sufficient to reduce prejudice (i) Removing name from co-Ds confession is not sufficient to remove prejudice (Gray) (ii) Must sever trial, provide separate juries, or eliminate any reference to D from confession (Richardson: confession didnt suggest Ds presence) C. Joining Offenses: What Must be Joined 1. Double Jeopardy: Same offenses must be joined or DJ will bar prosecution for the 2nd offense a. Does each offense have on separate element not contained in the other? (Dixon-Blockburger) If one offense is a lesser-included, barred by double 1. Same series/transaction, jeopardy from bringing separate prosecutions character, or common scheme/plan? Rule 8 (i) Dixon: Contempt + drug crime = same offense; contempt (for drug 2. May the court sever: crime) and assault with intent to kill = not the same offense, intent to spillover prejudice or kill is an extra element inconsistent defenses? 3. Must offenses be joined? b. Limits (i) If D seeks to sever because he wants to avoid prejudice, he is deemed Same elements? If different V, fact necessarily to have waived double jeopardy determined? (ii) Does not bind separate sovereigns: two states or federal/state 4. Std on appeal for (iii) Same sovereign may seek civil penalties unless civil action is essentially criminal (Hudson); could also seek criminal after civil 2. Collateral Estoppel/Claim Preclusion a. Distinguish from DJ: different victim means its not the same offense; look to claim preclusion b. Acquittal for one offense will bar a later prosecution for a different offense if a fact necessary for conviction of the second offense was necessarily determined earlier in the Ds favor (Ashe) (i) Was the fact fully-litigated? (ii) Look at charges to the jury, arguments to the jury, questions by jurors (iii) If D conceded all other issues, acquittal was probably based on that issue (iv) If civil prosecution fails, government can seek civil penalties because the burden of proof is different; but after losing civil case, cannot seek criminal prosecution if (a) actually litigated and (b) fact was reason for finding at earlier trial V. Regulating Delay A. Interests 1. Advanced by speedy trial a. Ds interests

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(i) D may be incarcerated no income, freedom, impaired ability to prepare defense (ii) Cant clear name (iii) Lack of resolution (iv) Defense evidence may be lost with passage of time b. Society (i) Risk of released D harming society (ii) Dont want to lose proof, memories (iii) Finality (iv) Costs to taxpayers, families, employers from incarceration (v) Avoid arbitrary plea bargains (vi) Rehabilitation effect lessened (vii)Victims may prefer swift justice (viii) Reduces risk of vigilante justice 2. Advanced by delay a. Ds Interests (i) More time to build case (ii) Negotiate plea instruments (iii) State has burden of proof and evidence lost may be crucial to the case (iv) Prosecutor may dismiss the case based on lack of public interest (v) Put off eventuality of jail (vi) More likely to find impartial jury the longer separated from news of the vent b. Society/Prosecution (i) Time to develop proof (ii) Increased leverage for settlement (iii) Other more important cases B. Constitutional Limits 1. Prior to charge (Lovasco) a. Dismissal requires showing of (i) Prejudice (ii) Prosecutions reason for delay (a)Hoping for impairment of defense is not an acceptable reason (b)Some lower courts require showing of bad faith b. Forcing P to bring charge before it is ready risks (i) Impairing ability to fully investigate (ii) Impairing ability to consider wisdom of charges (iii) Resolving doubtful cases in favor of prosecution 2. Delay between charge and trial: a. Test: Barker balancing (i) Length of delay: minimum time necessary to trigger is at least 6-10 months; time beyond that weighed in the balance (ii) Reason for delay; good reasons include witnesses overcrowded dockets (iii) Whether D asserted the right

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(iv) Prejudice to D: impaired defense, incarceration, and anxiety/reputation (v) Delay caused by D or D counsel weighs against the D (even if counsel is private or publicly assigned); public defenders failure to move the case forward is not attributable to the state (Brillon) b. Applying the test (i) Barker: D never asserted and didnt show prejudice; but had he shown these, the Ps reasons for waiting were unacceptable (ii) Doggett: 8 year delay with no good reason for waiting (governments negligence in not looking for D); D cant be penalized for failing to assert because he had no knowledge of the indictment (iii) Wilson: 22 years + active evasion + D failed to assert; prejudice waived where D actively flees? c. Dismissal with prejudice is the only possible remedy; remanding would only add to delay (Strunk) C. Statutory Regulation: Speedy Trial Act 1. Starting the Clock a. From arrest, 30 days until indictment; unless no GJ has been in session during such 30 period (3161(b)) b. From public filing of indictment or information or date of first appearance, which occurs later, trial must occur within 70 days (3161(c)(1)) (i) Unless D consents in writing, trial shall not commence less than 30 days from first appearance (3161(c)(2)) 2. Restarting the clock a. If indictment or information is dismissed on Ds motion or charge dismissed and new complaint is filed charging D with the same offense or offense based on the same conduct or arising from the same criminal episode, starts the clock over and trial must begin with 70 days (3161(d)(1)) b. If indictment or information is dismissed by trial court and reinstated following appeal, trial must occur 70 days from day decision becomes final or 180 days if witnesses are unavailable or other factors from passage of time (3161(e)) c. If retried after mistrial, 70 days from date of action occasioning the retrial (3161(e)) d. Deemed indicted from day earlier plea is withdrawn (3161(i)) 3. Isolate periods of delay a. Periods attributable to D (3161(h)(1)) (i) Proceeding including examinations to determine mental competency of physical capacity of D (ii) Trial with respect to other charges against D (iii) Interlocutory appeal (iv) Pretrial motion, filing through conclusion or other prompt disposition of the motion (a)Lower courts interpret as 45 days (v) Proceeding relating to transfer or removal to another district under FRCP

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(vi) Transportation of D from district to exam or hospitalization, except time in excess of 10 days from date of order of removal or transport and Ds arrival (presumed unreasonable) (vii)Consideration of the court of proposed plea agreement (viii) Period (less than 30 days) any proceeding by D is actually under advisement by the court (ix) Deferred by government by agreement with D (x) Absence or unavailability of the D or an essential witness (a)If whereabouts unknown and he is attempting to avoid apprehension or prosecution (absent); or whereabouts known but cannot be obtained by due diligence or he resists appearing for trial (unavailable) (xi) Period where D is mentally or physically unable to stand trial b. Information or indictment is dismissed on motion for the P and thereafter a charge is filed against the D for the same offense, an offense required to be joined, delay would run for new charge as though there had there been no previous charge (i) Compare to motion by D: clock restarts; here, clock stops c. Where D is joined for trial with co-D for whom time has not run and no motion for severance has been granted (i) Co-Ds excludables also excludable d. Continuance granted by judge sua sponte or at request of the D if judge granted such continuance of the basis of finding that the ends of justice outweigh interest in speedy trial; court must set forth reasons for finding. (i) Consider: (a) Would failure to grant make continuation of proceeding impossible or result in miscarriage of justice (b)Whether case is unusual or complex due to number of D, nature of the prosecution, novel questions of fact or law, otherwise unreasonable to expect adequate preparation (c)Unreasonable to expect indictment in 30 days from arrest (d)Would deny D reasonable time to obtain counsel, deny D or government continuity of counsel, deny necessary time for effective prep (e)No continuance for lack of diligent prep or failure to obtain available witnesses by government e. Any period of delay (but less than 1 year) ordered by court by preponderance of evidence for evidence in foreign country f. See 3161(j) regarding special rules for D in custody 4. Calculate time: if over time period, violation 5. Remedy a. Dismissal (i) Arrest-indictment more than 30 days (ii) Charges filed/first appearance trial (a)D has burden of proof supporting the motion but P has burden for evidence relating to unavailable witnesses

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(iii) D is detained under Bail Reform Act: no detainee shall be held in custody pending trial after 90 day period b. Dismissal without prejudice depending on: (i) Seriousness of offense (ii) Facts and circumstances leading to dismissal (iii) Impact of re-prosecution on STA and administration of justice (iv) D should argue prejudice if dismissal is P or judges fault c. Sanctions for D or P counsel (i) If: (a)Knowingly allow cases to be set without disclosing that witness will be unavailable (b)Filing frivolous motion for purpose of delay (c)Knowingly false and material statement for the purpose of continuance (d)Willfully fails to proceed to trial without justification (ii) Type of sanction (a)Fines: Ds appointed counsel, reduced compensation; Retained counsel, of compensation; P, fine up to $250 (b)Deny right to practice up to 90 days (c)Report with disciplinary committee VI. Right to Counsel A. Constitutional Right 1. When Does Right to Counsel Apply? a. Generally: during critical and adversarial stages of trial b. Pre-trial: No right to counsel prior to adversarial proceedings (Kirby) (i) No right to counsel in the GJ: secrecy; GJ is investigatory; contents cant be used at trial (ii) No right to counsel in pre-indictment line-p or photo identification line-up (iii) During interrogation, 5th Amendment guarantees right to counsel in order to protect 5th Amendment rights (Miranda) th c. 6 Amendment Right to counsel attaches at first judicial proceeding: formal charge or when government has used the judicial machinery to signal a commitment to prosecute (Rothgery) (i) Where accusation is filed with a judicial officer and prompts restrictions on the accuseds liberty in order to facilitate prosecution d. Right to counsel at trial: Gideon v. Wainwright: 6th Amendment guarantees right to the aid of counsel at trial; the right is fundamental and is incorporated against the states through the 14th Amendment (i) Advances key concerns of criminal justice: reliability and equality (ii) Required for enforcement of other rights e. Right to counsel during appeals: under equal protection, it would be discrimination for wealthy Ds to have appeals heard while indigents do not (Douglas)

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(i) But no right to counsel on discretionary appeal; appeal is a sword to upset prior determination of guilt, not a shield to protect against being haled into court; 14th Amendment does not require absolute equality and it does not equalize economic conditions (Ross). D will have had aid of counsel during first appeal, a transcript of trial, appellate brief on his behalf, and an opinion from the first court of appeals 2. For What Types of Cases Is Counsel Required? a. Felony cases: counsel always required (Gideon) b. Misdemeanor cases: only if D is actually incarcerated or sentenced to suspended sentence (i) Argersinger: No person may be imprisoned without right to counsel (ii) Scott: Right to counsel only if D actually imprisoned; if crime only carries a risk of incarceration, not required to appoint counsel (if no counsel, cant sentence to jail) (iii) Pre-trial detention is not imprisonment? Salerno (iv) Shelton: Suspended sentence requires counsel (a)If D violates terms of probation, he will be imprisoned for the underlying offense, not the violation; counsel at probation revocation doesnt help because the question is only whether he violated (v) Even if sentence is time served, right to counsel: incarceration is part of the sentence B. Waiver and Self-Representation 1. There is a historical and constitutional right to represent oneself at trial (Farretta) a. Protects autonomy and right to craft his own defense b. Waiver must be knowing and voluntary (i) Record must show that an accused was offered counsel but intelligently and understandingly rejected the offer (Carnley v. Cochrane) (ii) At plea, D need only be informed of the nature of the charges, the right to be counseled regarding the plea, and the range of allowable punishments; need not inform D that he risks overlooking viable defense (Tovar) 2. Limits a. D must clearly and unequivocally waive right to counsel; must timely assert right; no constitutional obligation to inform D of right to proceed pro se in absence of clear indication that he wishes to proceed without counsel; b. State may limit a Ds right to self-representation by insisting on representation when D is not mentally competent to conduct his own defense (Edwards) (i) The standard for competency to stand trial and competency to represent oneself is different (ii) When mentally incompetent represents herself, it does not comport with dignity c. State may appoint standby counsel (McKaskle) (i) D must have actual control: standby cannot control tactical approach or speak instead of the witness

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(ii) Jurys perception cant be influenced: Counsels participation outside presence of the jury is ok; (iii) No constitutional right to standby counsel or hybrid representation (iv) Once D invites or aggress to substantial participation by counsel, subsequent appearances must be presumed to be with acquiescence (v) Generally no ineffective assistance of standby counsel claims unless erroneous legal advice d. Some states have appointed where representation is absolutely necessary to ensure a fair trial: physical disability/speech impediment or educational deficiency (Pickens) e. No right to self-representation on appeal (Martinez) C. Denial of Counsel 1. Actual or constructive denial of the assistance of counsel presumed to result in prejudice a. Denial at prelim: relief unless prosecutor can prove denial was harmless BRD b. Remedy for any actual or constructive denial is new proceeding (Perry) 2. Interference: prejudice presumed a. Where trial court has prevented counsel from utilizing certain adversarial procedures 3. Ineffective Assistance of Counsel (Strickland) a. Performance was deficient: unreasonable considering all the circumstances, action cannot be considered sound trial strategy; not the result of a reasonable professional judgment; strategic choices made after thorough investigation of law and facts are virtually unchallengeable (i) Presumed to be reasonable strategy b. D must affirmatively show a reasonable probability of prejudice: undermine confidence in the outcome; totality of the evidence (weak evidence likely to be infected); any adverse change in the outcome (i) Adverse impact = sentence, charge (ii) Structural claims (failure to raise Batson claim, racial discrimination) may presume prejudice; very difficult to assess whether discrimination affected outcome c. Ds who retain their own lawyers are entitled to less protection than D for whom the state appoints counsel: decision to retain a particular lawyer could reduce or forfeit the Ds entitlement to constitutional protection (Cuyler) 4. Actual conflict of interest, prejudice presumed (Cuyler) because counsel breaches duty of loyalty a. Examples (i) Classic conflict: joint representation of co-Ds in the same trial (ii) Co-Ds tried separately (iii) Previous representation or current representation in another matter a victim (iv) Third party with interest in the case is paying counsels fees (v) Fee arrangement creates conflict (vi) Counsel involved in same transaction and fear possible criminal prosecution

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(vii)Counsel under investigation by same prosecutors office (viii) Counsel facing possible criminal or disciplinary consequences from representing the D (ix) Counsel has obligation to deliver physical evidence to the police (x) To be called as a prosecution witness b. Prejudice presumed only if the D demonstrates that counsel actively represented conflicting interest AND actual conflict of interest adversely affected his lawyers performance (i) Decision to forego a particular argument had a sound strategic basis, no adverse impact (Burger) c. Remedy is automatic reversal structural error D. Reforming Indigent Defense 1. State structures a. Individually appointed private attorneys (i) Appointed by court through judicial discretion in appointments or neutral rotational system b. Public defender offices c. Contract-attorney organization: contract firm agrees to cover indigent defense docket for a flat fee or hourly fee with caps d. State oversight systems: qualifications, caseload limits, attorney training; special standards for death penalty representation 2. Some rights should not be waivable: procedures provide little protection because they can be waived, reform must come through political reform 3. Tension between Court mandated procedural rights and reality of funding, crime rates, and crime definitions (Stuntz); underfunding, overcriminalization, and oversentencing have increased as procedure has expanded a. Underfunding of defense counsel limits the number of procedural claims that can be pressed (i) Where legislature disagrees with courts rules, underfunding reduces number of claims pressed (ii) Courts should set funding floors (iii) Defense counsel more likely to assert constitutional argument than to investigate factual issues b. Expanded liability definitions and higher sentences make investigations and plea bargains easier (i) Officers can arrest for a minor offense to search or question suspect on a major one (ii) Leaving trivial laws on the books allows prosecutors to push for pleas without proving elements of harder-to-prove offenses c. Countermajoritarian restraints on the criminal process can succeed only at a cost, and the cost is disproportionately imposed on those who least deserve to bear it (i) Costs borne by the poor: Because wealthier defendants cost more to prosecute (more money to press procedural issues), steer towards prosecution of indigent defendants

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VII.

d. Constitutionalizing substantive criminal law would not have these negative effects, but courts leave it to the legislature; courts should be more proactive in funding, definition of crime, and sentencing (i) Courts motivated by desire not to trench legislatures territory and to stick to law-like and less contentious issues (ii) Allows state to end-run much criminal procedure (iii) System might be better off if Warren court had worried less about criminal procedure and more about criminal justice Access to Evidence A. Introduction 1. Rationales a. Pro-discovery (i) Ds statement ensure accuracy (discover fabrications) and fairnrness (ii) Encourages settlement (iii) Avoid surprises at trial b. Anti discovery rationales (i) May lessen witness protection or protection for undercover informants (ii) Perjury concerns: alibi or defense to fit with Ps case? (iii) Compromises work product protections 2. Models a. FRCrP 16 narrowest model b. ABA 1st: Most states follow this in-between approach (i) Defense discovery equivalent to FRCrP 16 (ii) Prosecution standards roughly similar to Rule 16 + Rule 12.1 (notice of alibi) and Rule 12.2 (notice of an insanity defense c. ABA 3d: Broadest discovery 3. Disclosure always made subject to possible restriction through judicial issuance of a protective order on sufficient showing (Rule 16) B. Defendants Constitutional and Statutory Rights to Discover Government Evidence 1. Prosecutors has a constitutional duty to disclose exculpatory evidence reasonable likely to affect the outcome at trial or undermine confidence in the result (Brady; Bagley) a. Test (i) Favorable: substantive and impeachment treated the same (ii) Evidence: not inadmissible information; majority of states require disclosure if it could lead to admissible evidence (a)ABA rules would not limit to evidence (iii) In possession or control of P or agents (iv) Known to P or agents working on the case (a)ABA would include investigative team; P not required to conduct investigation for evidence though (v) Material to guilt or sentence (a)ABA would have P turn over all evidence (vi) Not disclosed: if D had other access to info, courts may not find a violation

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(vii)In time to make fair use at trial (a)ABA would require in time for plea or in time for sentence mitigation b. Violations (Agurs and Bagley) (i) Use of perjured testimony/failure to disclose that testimony used to convict was false: P must show error was harmless (ii) Failure to respond to general request or specific request: D must show (1) error and (2) reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different; sufficient to undermine confidence in the outcome (a)Taken from Strickland (b)Materiality standard does not require D to show by preponderance (more likely than not) that outcome would be different, only to undermine confidence in result; does not need to show that there was not enough to convict; once constitutional error is found, no need for harmless error analysis (Kyles v. Whitley) (c)Court can consider whether failure to respond to a specific request had adverse effect on preparation or presentation of defense c. Timing (i) In time for effective use at trial: scientific evidence must be disclosed sooner (ii) When evidence is covered by Jencks and Brady (prior recorded statements of a prospective government witness), courts are divided on timing (iii) Disclosure of impeachment material need not be made in time to consider before plea agreement (Ruiz) (a)Impeachment is about fairness at trial (b)Plea only requires understanding nature of right, not detailed consequences of invoking (c)Could interfere with pleas (iv) ABA Model Rules argue that material should be turned over in time to be used in deciding whether to plea 2. Defendants Oral Statements, 16(a)(1)(A) a. Rationale (i) Less worry about witness intimidation; (ii) D may need to prevent perjury or inaccuracy (iii) Encourages settlements b. Rule: (i) Upon Ds request (ii) Turn over substance of statement (iii) If relevant (protects against statements made in connection with other ongoing inquiries) (iv) In response to interrogation by person knew was government agent (a)Protects against discovery of statements by undercover agents

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3.

4. 5.

6.

(v) If government intends to use the statement at trial (a)Avoid statements only used for impeachment and keeps prosecutors from having to seek out discoverable item (vi) And knows or should know through due diligence that the statement exists Defendants Written or Recorded Statements, 16(a)(1)(B) a. D request for inspection, copying or photographing b. Relevant written or recorded statement if (i) In governments possession, control, or custody (ii) P knows or should know statement exists c. Portion of written record containing substance of oral statement if (i) Relevant and (ii) D made statement in response to interrogation by person D knew was government agent d. Ds recorded testimony before GJ (i) Regardless of whether P intends to use e. If contained in another witnesss statement, controlled by rules about witnesses Statements to Undercover Agents are not discoverable a. D doesnt know they are government agents b. Protects identity for ongoing investigations Witness lists a. Generally not discoverable under FRCrP/state law unless strong showing of special need (Stroop): (i) Difficult to prepare defense (ii) Complex paper trial with multiple Ds (iii) Critical, dispositive evidence would flow from anecdotal testimony or of other unindicted coconspirators (iv) No indication that D has past criminal record or involvement in violence or threat of violence (v) P does not indicate that providing witness name will make witness less likely to show at trial b. Some states, ABA1st recommend prosecutor turn over witness list c. ABA 3d requires disclosure of persons known to have knowledge of relevant facts, regardless of whether they will be called as witnesses Statements of Others a. Statement 3500(e) and FRCrP 26.2 (i) Written statement made and signed by witness, or otherwise adopted (ii) Substantially verbatim, contemporaneously recorded recital of oral statement contained in recording or transcript of recording (a)Notes on statements was not a recorded statement because it was not recorded contemporaneously (b)But notes about a statement (including statements contained in police and investigative reports) count under ABA 3d rules (iii) Statement to GJ or transcript (iv) Applies to witnesss plea agreements b. Pre-trial, no requirement to turn over witness statements, 16(a)(2)

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(i) Could lead to witness intimidation (ii) Time limit is rarely enforced: statements are routinely ordered before trial; judge may tell jurors that recess is due to prosecutions refusal to turn over statements before trial c. Some states provide for discovery of written, recorded, or oral statements of co-Ds (ABA 3d) (i) States following ABA 1st only require co-D statements where co-Ds will be jointly tried (ii) States differ as to whether only statements intended to be used at trial are covered d. After witness testifies on direct, Jencks Act (i) D moves and court orders P to turn over any prior statements by the witness that relate to testimony that are in Ps custody (ii) P may request en camera review is government claims that statement does not relate to testimony (iii) Court may allow recess to allow D to review e. No access to statements by deceased witnesses 7. Ds Prior Record, 16(a)(1)(D) discoverable upon Ds request if in possession, custody, or control or if P should know record exists 8. Documents and Objects, 16(a)(1)(E) a. Photo books, papers, documents, data, photographs, tangible objects, buildings, places (i) Does not include state/agency records b. Rule 16 steps (i) Upon Ds request (ii) In governments possession custody and control (iii) Material to preparing defense OR P intends to use item in case in chief OR object was obtained from or belongs to D (a)Some states only require if it pertains to the case 9. Expert Reports, Discoverable under 16(a)(1)(F) a. Rule 16 (i) Ds request (ii) Written summary of expert testimony including opinion, basis and reasons for opinions and qualifications (name) (iii) If P intends to use at trial b. Rationale (i) Once opinion formed, little chance of intimidation or influence (ii) Lessens disadvantage between Ps early and complete investigation and Ds late and limited one (iii) Opportunity to examine closely and potentially seek assistance of defense expert 10. Police reports a. Generally protected by work product, even though police is not an attorney; or specifically exempted or by internal memo exemption (i) Some rules (FL) provide for disclosure unless court protective order b. Rationale

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(i) Preserving confidentiality of police sources, continuing investigations, investigative tactics (ii) Avoiding defense misuse to build red herring defenses (iii) Encouraging filing of complete reports for internal review process 11. Government reports memoranda or internal documents a. Generally not discoverable, FRCrP 16(a)(2) (i) Subjecting these to disclosure might encourage statements preparer to be less accurate b. Protected by work product protections unless party seeking discovery shows a substantial need for the time and inability to obtain without undue hardship (i) If turned over should be careful not to produce mental impressions, conclusions, opinions, or legal theories of an attorney (ii) No distinction between prosecution and defense in need for a work product doctrine (Nobles) (iii) ABA 3d provides absolute protection only for opinion work product of the legal staff (does not extend to police reports) (iv) c. ABA 3d provides for discovery of material and information in possession or control of members of the attorneys staff and any others who either regularly report to have reported on this particular case 12. Depositions a. Not typically a discovery method unless 15(a)(1) applies\ (i) P must bear cost for indigent; expensive and should be rarely used (ii) Concerned about protecting witnesses from confrontation by the D; unnecessary burden even if no fear (iii) D could have right to attend deposition, leads to security risks b. Rule (i) If D shows (1) need to preserve testimony OR (2) exceptional circumstances and interests of justice (a)Witness about to die, be deployed C. Governments Rights to Discover Defendant Evidence 1. Rationale a. Limiting defense discovery was specific to that situation of protecting witnesses. Still concerns about accuracy, efficiency, settlement, fairness 2. Limits a. Due Process requires reciprocal discovery between D and P (Wardius) b. Work product (and Rule 16(b)(2)(A)) protects reports, memoranda, or other documents made by the D or Ds attorney or agent 3. Notice of Defenses a. 12 states require the D give pretrial notice of the intent to rely on defenses (self-defense, entrapment, duress, intoxication, authority) (i) Not bound to raise the listed defense at trial, and prosecution cannot use against the D his failure to do so b. Notice of alibi does not violate Ds 5th Amendment right not to be compelled to be a witness against himself (Williams)

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(i) Petitioner was only compelled to accelerate the timing of his disclosure, because he would have had to disclose at trial (ii) Also serves the function of avoiding mid-trial delay and disposing of some cases without trials (iii) Dissent: But then D cannot later abandon the alibi and gives the P too much info about people who may know about D, which leads to evidence (related or unrelated offenses), rebuttal, too much information about Ds trial strategy (Dissent, commentary) (iv) State responses have varied: many states provide prosecution discovery of defenses to be raised, defense witnesses, written or recorded statements of prospective witnesses, documents and tangible items (v) Rule 12 requires reciprocal state discovery if D files notice of alibi (see below) 4. Witness Lists a. 25 states and ABA 3d provide for D disclosure of names and addresses of witnesses D intends to introduce at trial other than the D (i) These states also require defense discovery of Ps witness lists b. FRCrP 16 does not provide for witness disclosure, except alibi witnesses in Rule 12 (i) Disclosure lessens Ps burden of proving its case-in-chief (Prudhomme, Cal.) (a)But later amendment to Cal state constitution led to new decision upholding reciprocal disclosure of the names and addresses of witnesses it intends to call at trial (Izazaga) c. Alibi Witnesses, Rule12.1: After P request, D must turn over name, address, and number of each alibi witness on whom the D intends to rely (i) But if D files alibi notice, P must disclose the name of each witness that the government intends to rely on to establish that the D was present at scene of the alleged offense and any rebuttal witness to Ds alibi defense 5. Witness Statements a. States that require witness lists also require written or recorded statements of the listed witnesses when statement is in its possession (i) Does not violate 5th Amendment protection against self-incrimination (Nobles): compelled statements are those of third parties D did not prepare the report and did not convey any information to the investigator; the fact that the investigator works for D is immaterial b. Mass. order requiring defense furnish statements by prosecution witnesses that D intended to use at trial upheld (Commonwealth v. Durham) (i) Did not violate constitutional confrontation right (ii) Dissent argued that it impaired cross-exam by giving prosecution advance notice of inconsistencies c. Rule 16(b)(2)(A) prohibits discovery of statements made to D or Ds attorney if made by D, government or defense witness, or prospective government or defense witness

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6. Documents and Tangible Objects a. FRCrP and both ABA standards provide for court-ordered defense disclosure of documents and tangible items the defense intends to use at trial 7. Scientific reports a. Rule 16(b)(1)(B) requires disclosure if (i) D requests (ii) Item is within Ds possession, custody, or control, AND (iii) D intends to use the item or call the witness at trial b. Limits (i) Due Process requires reciprocity (ii) 5th does not apply because D himself is not being asked to testify (Nobles) (iii) But Nevada has found that it does violate self-incrimination because D is forced to disclose information that he never intended to disclose at trial, some of which could be incriminating (Binegar) (iv) NJ found that forcing report of experts violates right to counsel because D must be able to rely on confidentiality in seeking an experts advice (Mingo) (a)Other states have rejected (v) Attorney-Client privilege could bar (p. 1227) in some states if attorney or client discloses info for purposes of trial prep (a)Other states reject because expert is not attorney; some allow privilege if client makes statements to the expert or attorney reveals private info received from the client c. Easiest case for discovery because government will need to consult its own experts D. Remedies for Discovery Violations 1. Violations by the Prosecution a. Range of remedies (i) Ordering immediate disclosure (ii) Granting a continuance (iii) Excluding evidence: but this could harm accuracy and courts are hesitant (iv) Charge directing the jury to assume certain facts that might have been established by nondisclosed evidence (v) Contempt (vi) Mistrial: but there must be manifest necessity or new trial will be barred by DJ (vii)Dismissal of the prosecution (viii) Excluding testimony of unlisted witnesses (alibi and insanity notice statutes) except for good cause shown b. Selecting a remedy (i) Consider: Culpability, prejudice, lowest risk to accuracy (ii) Preference for continuance where party responsible for violation acted in good faith; court should determine if potential prejudice can be alleviated by continuance

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(a)But if length of needed continuance would be too disruptive or continuance wont respond to prejudice (after opposing side has committed itself to an inconsistent position), may need to consider other remedies: exclusion, jury instruction, mistrial (iii) Late disclosures that contradict a misleading defense have led to contradicting remedies, depending on the court (a)Letter that undercut Ds claim of good character and noninvolvement in the crime: court found that D had knowledge of letters existence (he had written it) and therefore there was no prejudice (People v. Taylor, Mich.) (b)Testimony that undercut Ds Costa Rica alibi: attacked very foundation of the defense strategy and so serious a detriment to preparation should lead to a new trial (Noe, 11th Cir) 2. Violations by the Defendant a. Remedies: Exclusion? (i) Exclusion would implicate Ds right to present a defense and right to the compulsory process (ii) But excluding testimony of a favorable witness is not absolutely prohibited by constitutional right to use of compulsory process. Pattern of discovery violations may create suspicions that violations were designed to present fabricated testimony, and appropriate to exclude (Taylor v. Ill) (a)If omission was willful and motivated by a desire to obtain a tactical advantage and minimize effectiveness of cross and ability to get rebuttal evidence, appropriate to exclude (b)Integrity of judicial process at stake; D is penalized for attorneys conduct (Dissent disagreed) (iii) Allowing a surprise witness would lead to delay, rebuttal witnesses; would not cure prejudice because P would have to recall earlier witness to rebut and would seem surprised and exclusion was proper (Tyson v. Trigg) b. Generally may not exclude Ds testimony (Rule 12.1(e) (i) Does right to testify require greater constitutional protection than right to present witnesses; is concern less important since state has to prove Ds presence (ii) Some states have barred Ds from giving alibi testimony beyond denial of presence at the scene when no alibi notice was provided E. Governments Constitutional Duty to Preserve Evidence 1. Access to witnesses a. Deportation of witnesses violates compulsory and/or due process if D can show that evidence lost would be both material and favorable to the defense; sanctions warranted only if there is a reasonable likelihood that testimony could have affected the trier of fact (Valenzuela-Bernal) (i) Brady applies but deportation alone is not enough to establish a violation (ii) Government has manifold responsibilities in immigration cases

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VIII.

b. Intimidation: State (judge or prosecutor) may not impose pressure on witness not to testify (Webb); (i) Witness must be important to the defense, material (ii) D was denied witnesss testimony as a result of the prosecutions action (threats to prosecute for perjury) (a)Prosecutor should convey perjury information through witnesss counsel, not personally (b)Recent Broadcom case dismissed indictment where prosecutor called witness and threatened to prosecute for perjury if testimony differed c. Immunity: Court can only for granting immunity (DAntonio) only in egregious cases; immunity is a charging decision (i) P discriminatorily granted immunity to its own witnesses: does it look like prosecution is game-playing with grants (ii) Witness has material, exculpatory, noncumulative evidence (iii) Information is unobtainable from other sources 2. Undercover agents a. Rovario: informers privilege may give way to need for a fair trial where (i) Is the informant the sole participant in the transaction and central to the events? (ii) Does the witness have exculpatory evidence (Brady applies) (iii) Balance need to reveal identity: crime charged, possible defense, significance of the informers testimony, and other relevant factors 3. Preservation/Destruction of Physical Evidence a. If destruction of evidence was done in bad faith, violation of due process (Youngblood) (i) If state has a destruction policy that it followed, it is not destroying evidence in order to win (ii) But many states have adopted a multi-factored balancing test: is this the kind of evidence that would exonerate? How culpable was the state? b. After conviction, D does not have the same liberty interest as someone presumed innocent and has no constitutional right to preservation of evidence (Osborne) 4. Sanctions a. Loss of conviction b. Contempt c. Disciplinary sanctions from violating Rule 3.8 or use of false evidence Pleas and Bargaining 1. Rule 11: plea agreement may specify that government will a. Not bring or will move to dismiss, other charges (i) May also charge with lesser included offense (ii) Requires leave of the court to dismiss (FRCrP 48(a)) b. Nonbinding recommendation or not oppose Ds request that a particular sentence or range is appropriate or that particular provision or sentencing factor does or does not apply

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2.

3.

4.

5.

(i) D may not withdraw the plea if the court does not follow the recommendation or request; always a risk c. Agree to specific sentence or sentencing range: binding if the court accepts ABA Standards 14-1.8: Appropriate for the court to approve sentence concessions where a. D expresses genuine contrition and shows a willingness to assume responsibility for his or her conduct b. Concessions will make alternative correctional measures available where these will be effective c. D has demonstrated remorse or consideration for victims in foregoing public trial d. D has given or agreed to give cooperation to apprehend equally or more serious criminals Pros for P a. Administrative efficiency: alleviates overcrowded dockets b. Using for weak cases likely to lose at trial c. Where D can cooperate and help convict others d. Spares V from trial e. Punishment starts sooner, increased time for rehabilitation f. Acceptance of responsibility allows for remorse g. Avoid dangers of pre-trial release h. D can waive pre-plea errors Pros for D a. Leniency: allow prosecutors to manipulate charge and courts to manipulate sentences for less culpable offenders (i) Sentencing breaks; (a)Downward departures (b)Dropped sentencing enhancements (c)Foregoing mandatory minimum (d)Discretionary alternative sentences (treatment, suspended, stayed) (e)Stipulating to criminal history or facts (f) Stipulating a sentence cap b. Expression of remorse c. Avoid uncertainty/risk of trial: avoid cost of gambling and losing (Scott) d. Negotiate for other concessions: assets, protection, dont charge my mother Problems a. Many plea agreements require D to waive appeal rights (i) Waiving future risk is uninformed (ii) Even waives serious error (iii) Although many courts would find an exception for actual innocence because of change in substantive law (Bauza) b. May scare innocent people into pleading (i) But often its a question of value judgments about conduct: we simply choose to criminalize or not criminalize some conduct and there is no objective truth about whether it was criminal or not (Enker)

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(ii) If innocent person receives a giant discount for pleading, does this start to look like coercion? (Schulhofer) c. Privatizes public disputes (i) Destroys the idea of objective societal determination of moral guilt d. Many Vs want more punishment e. Dilutes moral force of criminal sanction and distorts public perception and criminal legislation (Arenella) f. Sentencing disparity between those who plea and those who exercise right to go to trial. But: (i) 1st Cir. has held that sentencing disparity does not unfairly burden the right to go to trial (Rodriguez) (ii) Proper for the court to consider the Ds whole person and personality for whatever light those may shed on the sentencing decision (Grayson) (iii) Does putting victim through trial, eliciting details of the crime merit a higher sentence? (iv) Rewarding person for positive benefits of apprehending others B. Due Process: Intelligent and Voluntary 1. Knowing and Intelligent a. D must be aware of true nature of charges (Brady) (i) Includes knowledge of the critical elements (intent in 2nd degree murder) (Henderson) (ii) Where counsel and the court do not correctly understand the essential elements (where higher court later interprets meaning of the statute), may challenge on habeas (Bousley) (iii) Where nature of charge and elements explained by competent counsel (Stumpf) (iv) Critical elements may include: meaning of attempt b. Whether D was aware of actual sentencing possibilities and if not, whether accurate info would have made a difference in plea (Williams) (i) But not actual Guidelines calculation (Andrades) (ii) Generally no responsibility to advise about collateral consequences (iii) Does Padilla (holding that effective counsel must warn about deportation consequences) affect this responsibility? c. Advised by competent counsel (Brady) (i) Where D can show counsel was ineffective and, but for bad advice, would have refused plea and gone to trial (Hill) d. Nothing to indicate that he was incompetent or otherwise not in control of his mental faculties (Brady) e. Brady material not constitutionally required to be disclosed in time for plea (Ruiz) 2. Voluntary Examples a. P may seek higher charges if D doesnt take a plea (Hayes) (i) Prosecutor could have brought either charge from the beginning and substituting the higher charge after D refuses to plea isnt punishment (ii) D simply chose to forego leniency

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(iii) Taking a plea would have allowed him to avoid the cost of gambling and losing at trial; he may be in the same position as D who goes to trial and loses (Scott) (iv) A contrary rule would incentivize prosecutors to always bring the higher charge in the beginning b. D may take plea to avoid possibility of death sentence (Brady) c. D receives mandatory higher sentence after trial as compared to optional lower sentence with plea (Corbitt v. NJ) 3. When Plea May be Involuntary a. Knowing plea must stand unless induced by (Shelton, 5th Cir) (i) Threats (or promises to discontinue improper harassment) (ii) Misrepresentation (including unfulfilled of unfulfillable promises) (iii) Or perhaps by promises that are by their nature improper as having no proper relationship to the prosecutors business (bribes) (5th Cir) b. Plea made on constitutionally defective advice from counsel (Bradshaw v. Stumpf) (i) Where D bypassed plea after counsels errors and was convicted, prejudice is established by showing a reasonable probability that, absent the attorneys conduct, the D instead would have accepted the bargain and pled (Julian v. Bartley) (ii) Courts differ as to remedy: prosecution may be obligated to renew the original plea offer (Nunes v. Mueller, 9th Cir) or court may order retrial which gives prosecutor discretion (Julian, 7th Cir) c. Could not have understood the terms of the bargain he and the state agreed to (Bradshaw v. Stumpf) d. Statutory scheme where highest penalty is reserved exclusively for those who opt for trial (Jackson) e. Wired pleas: When prosecutor enters agreement with 2 co-Ds that requires both to plead or no deal; judges will carefully scrutinize for voluntariness based on circumstances of the deal (i) But Pollard (DC Cir) found that wiring Ds plea to his wifes plea did not make it involuntary C. Breach and Remedies for Breach 1. Breach by Prosecution a. When a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it is part of inducement or consideration, violation of that promise or induce is breach (Santobello) b. When a prosecutor makes a bargain, prosecutor can withdraw unless the D has detrimentally relied on the agreement (Mabry). Prosecutor is not held constitutionally responsible for making and withdrawing the first offer and D cannot reasonably attribute this action to his own counsel. Detrimental reliance includes (i) Providing info to the government (ii) Testifying in court (iii) Confessing guilt (iv) Returning stolen property

44

(v) Monetary restitution (vi) Failing to file a motion to have charges presented to a GJ (vii)Submitting to a lie detector test (viii) Waiving procedural guarantees c. Things that arent breach (i) Not breach where court considers other conduct relevant to sentencing (US Sentencing Guidelines) (ii) Not breach for P to insinuate that harm was great where agreement included promise not to seek life sentence (Pollard) (iii) Promising to outline Ds cooperation and then calling it half-hearted (Pollard) 2. Remedy for Prosecution Breach a. Santobello remanded to lower court for consideration of whether remedy should be specific performance or allowing D to withdraw his plea (and enter a new one or go to trial?) (i) J. Douglas thought weight should be accorded to Ds preference of remedies (ii) J. Marshall and dissent thought plea should be vacated 3. Breach by Defendant a. Before the court accepts the plea, the D may withdraw for any reason or no reason (FRCrP 11(d)(1)) b. Before sentencing, D may usually withdraw plea with good cause (FRCrP 11(d)(2)) c. After sentencing cannot withdraw unless agreement included a term binding the judges discretion in sentencing and the limitation was accepted by the judge (as in a (c) plea), but the sentence imposed violated that limitation d. Where D refuses to testify (even for second or successive trials), state can move forward as though no agreement had been reached (Ricketts) (i) D should make sure there is no clause that says P is sole decisionmaker on whether breach occurred D. Judges Role 1. Rule 11: a. Before accepting a plea, court should inform D of right to plead not guilt, right to jury trial, right to counsel, confrontation right, waiver of rights, nature of the charge, maximum possible penalty including imprisonment, fine, and term of supervised release, mandatory minimum penalty, applicable forfeiture, restitution, special assessment b. Ensure that plea is voluntary and did not result from force, threats, or promises c. Ensure factual basis for the plea 2. If judges believes D was coerced into waiving or that waiver was otherwise involuntary a. D must understand the charge, including critical elements (Henderson) b. D must understand the max sentence, but not collateral consequences (parole, mandatory minimum, recidivist penalties for later crimes, SORNA, restitution, or forfeiture)

45

3.

4.

5.

6.

c. Prosecutor cant make a misrepresentation, use perjured testimony If judge disagrees with the charge bargain (too lenient, too harsh, wrong charge), he has very little power to second-guess a. Separation of powers requires that judges not interfere with charging decisions (Newman) (i) May not reject because the charge itself is too lenient (Ellis) b. No authority under FRCrP 48(a) unless government harasses D by repeatedly bringing charges and dismissing them (In re US) If judge disagrees with sentence a. He may reject if he believes sentence is too lenient or too harsh (Ellis) b. If agreement contains illegal sentencing terms (banishment, military service, coerced contributions, shaming, giving up profits), the judge is permitted but not required to reject c. If court rejects a plea rejects an A (charges dropped) or C (sentence specified) plea pursuant to Rule 11, must give D opportunity to withdraw (Hyde) Where D waives appeal rights: courts are divided a. Federal courts generally think trial judges abuse discretion to reject plea on this basis b. State courts are divided Where there is no factual basis for the plea a. Court may accept guilty plea even if D insists on innocence (Alford) (i) But judge may refused to accept; some states ban b. Constitution only requires factual basis for Alford pleas, but state statutes and Rule 11 require factual basis for all pleas c. D may also plea to a crime other than the one committed if there is factual basis for at least one charge (Zhao)

IX. Trial by Jury A. Scope of the Right to Jury 1. Rationale: a. Prevent government oppression (Duncan) (i) Corrupt or overzealous prosecutor; unfounded criminal charges could be brought to eliminate enemies (ii) Judges could be too acquiescent to higher authority, biased, or eccentric b. Opportunity for society to participate in process 2. Waiver a. D has option of waiving a jury and having bench trial (Patton) (i) But FRCrP requires (and Singer upheld) that government or court may refuse to allow b. Some states (NC and KY) dont allow waiver of jury trial 3. For What Crimes? a. All felonies and misdemeanors that carry a potential of more than 6 months (Baldwin) (i) Anything 6 months or less presumed a petty offense (Blanton)

46

4.

5.

6.

7.

8. 9.

(ii) Additional statutory penalties could rebut that presumption; where legislature calls for $5000/individual or $10K for organizations, this could rebut (iii) Several misdemeanors or counts should not be joined in determining whether it is petty (Lewis) b. Depends on legislatures assessment of seriousness (i) Compare to right to counsel which requires actual incarceration and depends on judges assessment of seriousness Sentencing a. D not entitled to sentencing by jury (Spaziano) b. Unless statute requires finding of aggravating facts (capital Ring) (non-capital statute, Blakely) Size a. Six-person jury does not violate 6th Amendment rights (Williams v. Florida) (i) But 5 is too few: less likely to foster effective group deliberation, disparate verdicts, no meaningful minority group representation (Ballew v. Georgia) Unanimity a. Twelve person need not be unanimous (Apodaca); lack of unanimity does not mean reasonable doubt (i) But 6 person jury must be unanimous may be speculative at best (Burch) b. But most states require unanimity Nullification a. Court rules that may allow nullification (i) No directed verdicts (ii) Jury not required to explain acquittal (iii) No new trial after acquittal (DJ) b. Court rules that prevent nullification (i) Judge should not give formal jury instructions that jurors may nullify (Dougherty) (ii) D not entitled to inform jurors (through argument or instruction) that a guilty verdict would carry a mandatory minimum sentence (PabonCruz, 2d Cir) (iii) Courts may approve of dismissal of juror who intends to nullify (Thomas, 2d Cir) (iv) Jurors take oath to follow the law Legally Inconsistent Verdicts a. Ok for jury to convict on facilitation, but acquit on underlying felony (Powell) Juror misconduct a. Forms (CRIMPROC 24.9) (i) Discussing the case outside of the jury deliberations (ii) Inspecting the scene of the crime (iii) Conducting experiments (iv) Using a dictionary to define a term in the judges charge (v) Lying during voir dire

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(vi) Considering outside information b. Must be raised before verdict (unless there is a non-juror witness) (Tanner) (i) Disrupt finality (ii) Full and frank discussion in the jury room, willingness to return an unpopular verdict, communitys trust in the system relies on secrecy (iii) Can question juror suitability during voir dire B. Selecting the Venire: Cross-Section Right 1. Right to fair cross section is fundamental (Williams) a. Violated by systematic exclusion of women by requiring women to opt in to jury system (Williams) b. Only applies to venire; no requirement that petit juries must mirror the community (Williams) 2. Federal Jury Selection and Service Act of 1968 a. Requires random selection b. No citizen shall be excluded from service on account of race, color, religion, sex, national origin, or economic status c. Procedure (i) Define vicinage (geographic area) (ii) Select lists (iii) Qualify lists: English-speaking, felonies, etc (iv) Draw venire (v) Select petit jury from venire 3. Test for 6th Amendment cross-section violation (Duren) a. Group alleged to be excluded is a distinctive group in the community (i) Members share specific common characteristics (Barber) (ii) Underrpresentation by 18-34 year-olds not distinctive (iii) Amish comprise distinctive group when they make up 35% of community (Fulton) b. Representation is not fair and reasonable in relation to the number of people in the community (i) Absolute disparity analysis: difference of 10% between community and groups share of the venire (Mosley) (ii) Where group makes up less than 10% of population, use comparative disparity: divide absolute disparity by population figure for a group; 40% is borderline c. Underrep is due to systematic exclusion (i) Using voting registry (even where large number of Asians choose not to register) not systematic exclusion (Le) (ii) Disparity attributable to economic, cultural, social, or language considerations must be deemed unavailable (Morales) (iii) Systematic exclusion may be ok if it justified by a significant government interest: (Greene: exclusion of those charged with crimes); (Chidester: Farmers excluded during planting season) 4. Equal Protection Challenge (6th Amendment easier to prove) a. Statistical under-representation of suspect class b. Opportunity to discriminate

48

c. State has no race-neutral explanation C. Selecting the Jury from the Venire: Equal Protection 1. For Cause Challenges a. Express bias (i) Person is unable to impose the death penalty and views are unmistakably clear (Witherspoon; Witt). Only a juror who is substantially impaired in his or her ability to impose the death penalty may be removed for cause. (Uttecht). (ii) Expressing agreement with KKK principles? b. Implied bias: juror says he can be impartial but court rejects (i) Association alone not enough; membership is not a proxy for beliefs (Salamone) (ii) Fear that juror would use outside knowledge (iii) Not usually challengeable solely because of employment with the government (Dennis) (a)But employment at a bank that was robbed may be enough (Allsup) c. Appealing erroneous for cause rulings: (i) Grants of cause challenges (knocking off someone who would have been impartial) not a basis for relief if you end up with an impartial jury (ii) Erroneous denials may be a problem if that person ends up on the jury; but if you use peremptory challenge on that person, cant claim violation for being forced to use peremptory (Ross) (iii) But the prosecution cant argue that Witherspoon violation is harmless because he had a peremptory challenge; would insulate jury selection error from meaningful appellate review 2. Questioning the Jurors a. No constitutional right to have questions asked of jurors (Ristaino) b. But during capital sentencing, right to ask about racial prejudice (Turner) 3. Peremptory Strikes a. Should they be eliminated? (i) End racial the discrimination that they inject (ii) Litigants can misuse if they strikes fall below the threshold (iii) Asks court to second-guess stated reasons (ethical implications?) 4. Equal Protection Challenge to Peremptory Strikes (Batson) a. Prima facie showing of intentional discrimination or deliberate exclusion on the basis of a protected class (i) Narrower than 6th Am challenge which allows showing a pattern of discrimination against any distinctive group (ii) Cross-section 6th Amendment challenge not applicable to selection from the venire (Holland) (iii) White D is allowed to object to exclusion of black jurors because injury is to excluded juror who is unlikely to challenge because of small damage awards and D shared motivation in the outcome (Powers) 49

(iv) The state can object to discriminatory practices by the D (McCollum.) b. Party defending challenge must present a group-neutral reason (Hernandez) (i) For excluding women, need exceedingly persuasive justification (JEB) c. Judge decides if party objecting has shown intentional discrimination by a preponderance (i) Burden on challenging party (ii) Divide between ethical obligation not to lie and courts potentially finding attorneys explanation incredible d. If court finds violation, must start with a new venire (i) Court may discredit where Ps proffered reason applies to otherwise0similar nonblack who is permitted to serve (Miller-El) (ii) Substituting someone of the same race doesnt vindicate excluded persons rights; compounds the discrimination X. Trial Rights A. Presence 1. Rationale a. 6th Amendment right to confrontation: does exclusion interfere with opportunity to cross-examine (Stincer) b. Due process right to assist counsel; could it be a constructive denial of counsel? 2. D may lose constitutional right to presence if a. After warning, D continues disorderly, disruptive, disrespectful conduct and there no effective less-restrictive means (Allen) (i) There is nothing constitutionally impermissible in continuing the trial in Ds absence (ii) Binding or gagging the D is not fair or dignified (iii) Holding D in contempt not sufficient (iv) If D is expelled, court should try to mitigate the disadvantage but making reasonable efforts allow attorney-client communication and keeping D apprised of the progress at trial b. Court may begin a trial in Ds absence if D knew of the trial date and intentionally stayed away (Jefferson v. State) (i) But FRCrP 43 may prohibit trial beginning if D is absent 3. Which proceedings? a. D only has a right to be present at trial and proceedings that could interfere with Ds opportunity to cross-examine a witness. Or any stage that is critical to the trials outcome or if his presence would contribute to the fairness of the procedure. (Stincer). (i) Due Process and 6th Amendment confrontation right (ii) No right to be present at pre-trial competency hearing of minor victims: the children later testified in open court where D had opportunity to cross 4. Court may not use visible shackles to restrain D during trial (Deck) a. Problems:

50

(i) Undermines presumption of innocence (ii) Interferes with right to communicate with counsel (iii) Weakens dignity of court proceedings b. Use of stun belt may create other constitutional problems (i) Further interferes with ability to communicate with counsel (ii) Shock would be least dignified possible thing B. Confrontation 1. The 6th Amendment bars the introduction of testimonial hearsay (Crawford) a. Testimonial: (i) Prior testimony at prelim, before a grand jury or a former trial (ii) Police interrogations b. Unless out of court statement was nontestimonial: (i) Made to police during an emergency (Davis) (ii) Not in anticipation of litigation c. D has no opportunity to cross examine and witnesss out of court statements d. Unless the witness is unavailable at trial and D had a prior opportunity for cross-exam (Crawford) C. Not to Testify 1. 5th Amendment right to be free from compelled testimony 2. Jury may not be instructed to infer and prosecutor may not argue guilt from Ds silence (Griffin) a. There are a number of reasons the D may not testify: timidity, nervousness, embarrassment, prior convictions b. If D requests, judge must instruct jury not to infer guilt from silence (Carter) 3. Sentencing judge is also not allowed to draw adverse inferences from silence at sentencing (Mitchell) 4. Prosecutor may not comment on Ds silence a. Lockett: referring to evidence as unrefuted and uncontradicted does not violate the constitution because it does not add anything to jurys impression b. Robinson: Where D urged that he was not allowed to tell his side of the story, prosecutions response that he could have taken the stand was ok; not used as substantive evidence, only to respond to Ds claim 5. D has a constitutional right TO testify (Rock)

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a. One of the few areas where adverse is an affirmative right b. Based on due process, 6th Amendment right to compulsory process, corollary to guarantee against compelled testimony c. State may place limits that are not arbitrary or disproportionate d. State may argue against Ds credibility by pointing out that he was present for all other testimony (Portuondo) D. Limits on Argument 1. Test is whether Ps comments so infected the trial with unfairness as to make the resulting conviction a denial of due process (Darden v. Wainwright) a. Requires D to show prejudice (like all DP errors); rare case (Modica) (i) If no prejudice, judge should cut off argument and forcefully instruct jury to disregard b. Examples of improper arguments (i) Personal opinion on credibility of the W (ii) Personal opinion on guilt or innocence of the D (iii) Should not address broader issues (impact on society) (iv) Inflaming passion or pejudice (v) Attacking integrity of D counsel (vi) Misstating the law (vii)Referring to facts outside the record (viii) Referring to ds silence c. Determining if trial was unfair (i) How egregious: misstatements of the law, facts outside the record (ii) Responding to Ds argument? (Young) (iii) Isolated episode in otherwise proper argument? (iv) Whether D made timely and strong objection, indicating a fear of prejudice (v) Whether judge took corrective action (instruction) (vi) Whether remarks were combined with other errors

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(vii)Overwhelming evidence of guilt XI. Sentencing A. Introduction to Theories 1. Competing ideals: individualization v. equity 2. Rehabilitation a. Concerns with disparity and arbitrary/injustice if rehabilitation is unsuccessful b. Swing back towards rehab as a cost-cutting measure 3. Deterrence 4. Incapacitation 5. Retribution B. Constraints on Sentencing Discretion 1. Prosecutors Discretion a. Judicial rejection of negotiated sentences b. Political review c. Parole release where available d. Clemency 2. Of judges a. Statutory minimums (certain offense or if certain facts present) b. Guidelines (which are now mandatory): base offense + offense characteristics downward departures / criminal history category c. Appellate review of compliance with mandatory minimums, guidelines, procedural requirements d. Political review e. Parole release where available f. Clemency C. Limits on Sentencing Info

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1. Judge can consider almost anything a. Information outside the record (Williams) (i) But in capital cases, must disclose which portion of the PSR formed the basis for the death sentence (Garner) b. Hearsay (Williams) c. Other crimes and conduct for which D was not charged or convicted (Williams) (i) Even if D was acquitted, standard is BRD and judge need only find by preponderance (ii) Goes towards culpability and likelihood of rehabilitation d. Ds commission of perjury (Dunnigan) (i) But the judge must make an independent finding to establish willful perjury, not just confusion, mistake, or faulty memory (ii) Goes towards Ds character, respect for the law (iii) May not increase above statutory max e. Cooperation and failure to cooperate (i) Can rely on non-cooperation in refusing to name drug supplier, but cannot use refusal to cooperate as a direct inference that Ps proof was correct because D has 5th A right to silence (Mitchell) f. Victims views; but state may give further guidance to court (Payne) 2. But he may not a. Retaliate for exercise of rights (Pearce v. Blackledge) b. Consider silence (Mitchell) c. Evidence of Ds membership in Aryan Brotherhood is not relevant (violates 1st Amendment) (Dawson) (i) But a Ds anti-Semitic statements during trial were properly considered in arson of Jewish community center(Kapadia) d. Ds or Vs race or gender (McKlesky) (i) However, court has upheld hate crime statute that permits additional penalties for crimes committed with the intent to intimidate (animus towards a group is more culpable) D. Rights at Sentencing 1. Right to be present 2. Right to assistance of counsel (Mempa v. Rhay)

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3. Right to notice 4. Right to present evidence a. Typically up to judges discretion b. If allocution, D must be placed under oath in some states c. States split on whether D has right to allocution 5. No right to confront witnesses E. Burden of Proof for Sentencing Factors 1. Element needed for conviction: P has burden of proving beyond reasonable doubt Statutory Max: Jury must 2. Affirmative defense at trial: D has burden by preponderance find any fact that raises 3. Facts that lead judge to impose a higher sentence within the sentencing range: P has statutory max (Apprendi) burden by preponderance (Williams) or permits punishment a. Judge has wide discretion to choose sentence and judge can pick any sentence beyond what conviction within statutory range alone allows (Blakely) b. There are facts relevant to sentencing that are not relevant to guilt - Except criminal history (i) Impractical to haul all PSR witnesses into court (Almendarez-Torres) 4. Fact of prior conviction that raises sentence max: P has burden by preponderance Statutory Range: Judge (Almendarez-Torres) has discretion within any a. Criminal history category range available after 5. Fact mandating higher minimum: P by preponderance (McMillan) conviction alone (Wiliams) a. Unless the fact that changes the nature of the conviction (wags the dogs tail?) Statutory Minimum: 6. Fact raising statutory max: Must be proven to a JURY beyond a reasonable doubt May be raised if fact(Apprendi) finding (McMillan) a. Unless D ADMITS as part of conviction b. Viewed as element of a greater offense: must also be charged in indictment c. Hate crime statute that boosts max sentence upon finding that D intentionally chose V based on religion, sex, race, sexual orientation d. Unresolved issues: (i) Amount of loss each finding of loss doesnt raise the max (ii) What counts as an admission?

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7. Fact raising max sentence that would be authorized by conviction alone: P must prove to JURY beyond a reasonable double (Blakely; Ring; Booker I) a. If factfinding at sentencing exposes D to sentence greater than the statute authorizes through the guidelines, fact must be found by a jury (Blakely) b. If fact must be found (aggravators) to make D eligible for capital punishment, jury must find (Ring) c. Problems with Blakely (i) This holding threatens all discretionary sentencing guidelines: judges could no longer make calibrated findings of fact at sentencing and judges would either have to be given broad discretion or guidelines would have to be advisory (a)Federal system and most states responding by making guidelines advisory (Booker II) but judge must still stay within statutory range (b)Some states limited the number of facts that put D in a different sentencing range and makes prosecution prove these facts at sentencing (ii) Forces D to contest these factors during trial for guilt or innocence d. Note that this holding exempts findings of prior convictions in order to preserve the criminal history category in sentencing guidelines (i) But Besser (NY) found that persistent offender statute in NY violates these cases 8. A fact permitting consecutive sentences for multiple offenses: P must prove by preponderance (ICE) XII. Double Jeopardy A. Attachment 1. Bench trial: attaches when evidence is received and the governments case begins (document or first witness sworn 2. Jury Trial: When jury is sworn (Crist) a. Jeopardy is an interest in avoiding harassment and embarrassment; having 1. Has jeopardy evidence presented to two juries creates double jeopardy attached? b. Ds interest in retaining the chosen jury through verdict; bound up in the idea 2. What was the disposition? that jury acquittal is special a.i. Mistrial on c. No DJ bar if dismissed pre-trial or after voir dire Ds motion no 3. Guilty Plea: Once the plea is accepted by the judge DJ B. Reprosecution Following Mistrial a.ii. Mistrial on 1. Where D did not consent or request mistrial, DJ bars unless there was manifest P: DJ unless necessity in granting mistrial manifest necessity a. Manifest necessity exists if an impartial verdict cannot be reached or if reversal b. Acquittal is certain DJ bar (i) Indictment fails to state a crime (Sommerville) c. Conviction (ii) Jury deadlock (Perez): permissible to declare a mistrial rather than overturned on force continued deliberations depending on whether D objected, appeal i. Evidence length of the trial, length of deliberation, effort to encourage/break DJ bar deadlock (Allen instruction, dynamite charges)
ii. Procedural no bar d.i. Dismissal on evidence, insanity, entrapment DJ bar d.ii. Dismissal on procedure

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(iii) Jury misconduct (iv) Defense counsels outrageous opening statement b. Where delay is due to P error (failure to get witnesses), not manifest necessity c. No manifest necessity where judge could cure the problem (i) Substitute juror or proceed with 11 (ii) Give instruction (iii) Grant continuance (iv) Make jury deliberate longer 2. If D consents or requests mistrial, he is considered to have waived DJ protection (Dinitz) a. UNLESS D was goaded by P into moving for a mistrial (Oregon v. Kennedy) (i) Goading is present if the record supports an inference that P thinks trial is going badly and tried to manipulate retrial and DJ system (ii) Depends on Ps intent b. Some states offer more protection (i) Californias subset of prosecutorial conduct that will not bar retrial is limited to intent C. Reprosecution Following Acquittal 1. Double jeopardy attaches after an acquittal a. State cant appeal b. Goal is to prohibit affording the prosecution another opportunity to supply evidence which it failed to muster the first time around (DiFrancesco) c. Protects the potential for jury nullification (Weston) 2. What counts as an acquittal a. Jury verdict b. Bench trial (judicial) verdict c. Directed verdict before jury verdict d. Dismissal (at trial or on appeal) for insufficient evidence

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e. Dismissal based on failure to rebut insanity or entrapment defenses f. Where D convicts of lesser-included, imply acquittal of greater charge (Green) (i) Unless hung jury or jury specifically notes it cannot reach agreement on higher charge 3. Unless D bribed the judge or jury (People v. Aleman, Ill.) D. Reprosecution Following Conviction Overturned on Appeal 1. If D appeals convictions and it is reversed for insufficient evidence of one of the elements, double jeopardy bars retrial (Burks) 2. If D appeals and conviction is reversed for procedural error (anything other than insufficiency of the evidence), double jeopardy does not bar retrial (Ball) a. No matter how flagrant the prosecutors error 3. If court of appeals finds that trial judge shouldnt have let the evidence in and without it there is insufficient evidence, this DOES NOT bar retrial because it is a procedural error (admitting evidence) (Lockhart) 4. Where D is convicted of lesser offense, implies acquittal of greater (Green) E. Reprosecution Following Dismissal 1. Pre-Trial dismissal does not bar reprosecution because DJ hasnt attached (Serfass) 2. Dismissal based on Procedure (anything other than insufficient evidence or anything P can appeal) does not bar reprosecution (Ball) a. Insufficiency of the information/charging (Lee) b. Pre-indictment delay does not bar retrial because it is actually procedural (Scott) (i) P could appeal judges ruling and obtain retrial c. If statute of limitations has run, state can bring a new charge that includes a more recent overt act (Kruelski) d. Improper venue: more procedural than substantive (Wilkett) 3. Dismissal based on failure to rebut insanity or entrapment defense bars reprosecution (Burks; Scott) a. Such a finding establishes the Ds lack of criminal culpability (Russell) 4. A dismissal for insufficiency of the evidence bars subsequent prosecution. When judges ruling represents a resolution in Ds favor on some or all of the factual elements of the offense charged (Sanabria; Scott) a. Even if the judges ruling to exclude evidence that leads to declaration of acquittal is clearly erroneous, counts as an acquittal (Sanabria). b. Even if judge dismisses because he erroneously believed there was an extra element in the charge, counts as an acquittal 5. Dismissal following a jurys guilty verdict: no DJ bar (Wilson)

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XIII.

a. If P successfully appeals the dismissal, then the verdict is simply reinstated; D would not be subjected to second trial F. Following Sentencing 1. Where judge misconstrued sentencing law and government can appeal, no DJ (DiFrancesco) 2. But where jury decides not to impose the death penalty (Bullington), re-sentencing is barred G. After Acquittal or Standing Conviction: 1. Double Jeopardy: Same offenses must be joined or DJ will bar prosecution for the 2nd offense a. Does each offense have on separate element not contained in the other? (Dixon-Blockburger) If one offense is a lesser-included, barred by double jeopardy from bringing separate prosecutions (i) Dixon: Contempt + drug crime = same offense; contempt (for drug crime) and assault with intent to kill = not the same offense, intent to kill is an extra element 2. Collateral Estoppel/Issue Preclusion a. Distinguish from DJ: different victim means its not the same offense; look to claim preclusion b. Acquittal for one offense will bar a later prosecution for a different offense if a fact necessary for conviction of the second offense was necessarily determined earlier in the Ds favor (Ashe) (i) Was the fact fully-litigated? (ii) Look at charges to the jury, arguments to the jury, questions by jurors (iii) If D conceded all other issues, acquittal was probably based on that issue c. After losing civil case, cannot seek criminal prosecution if (a) actually litigated and (b) fact was reason for finding at earlier trial (i) But if criminal prosecution fails, government can seek civil penalties because the burden of proof is different; Review of Error by Appeal A. Source of Defendants Right to Appeal 1. No constitutional right to appeal (McKane v. Durston) 2. But if a state provides a right to appeal, the Constitution requires state to comply with DP and EP a. DP: No vindictive prosecution in response to exercising right and getting relief on appeal (Pearce) b. EP: Must provide counsel for indigents on direct appeal (Douglas) c. EP: Cannot deny appeal to indigent D (Griffin) B. Defendants Appeals

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1. Can D appeal at this time? a. Final judgment rule: D can not appeal until sentence is imposed (i) More efficient to resolve all at once, appeal may crate undue delay and lead to lost evidence; one of the painful obligations of citizenship is that you have to wait until final judgment to appeal (Cobbledik) b. Unless there is an exception for a collateral issue (i) Order conclusively determines the question (not tentative, informal, or incomplete) (ii) Issue is important (iii) Issues is independent of the merits (a)Wouldnt be affected by subsequent decision on the merits (iv) Normal appellate review would provide inadequate remedy (a)Review would not cure error; harm would have already occurred c. Rulings on which D can seek interlocutory appeal (i) Denial of bail (Stack v. Boyle): Finally resolved and independent of the issue to be tried; moot if review awaits conviction (ii) Conditions of pretrial release (iii) Double jeopardy: constitutional right is the right not to be retried for the offense (Abney) (iv) Speech and Debate clause: right not to be questioned or tried about certain legislative activities (Helstoski) (v) Motion for return of property (vi) Order requiring juvenile to be tried as an adult: right would be lost (vii) Sell hearing forcing D to be medicated (viii) Third party rights/ Media gag order: affects 1st Amendment rights of access d. May not seek interlocutory appeal for (i) Vindictive prosecution: Remedy is a dismissal, not a right not to be tried (Hollywood Motor Cars) (ii) Speedy trial violations: determination of whether a violation has occurred depends on a determination of prejudice at trial (MacDonald) (iii) Grand jury errors: appeal involves considerations enmeshed in merits of the case, even despite Mechanik rule that violations are per se harmless (iv) Qualification of counsel: tied up with merits of trial and prejudice

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2.

3.

4.

5.

(v) Improper joinder (vi) Improper venue: remedy is transfer back to proper venue (vii)Denial of MTD due to statute of limitations: not as absolute as DJ (viii) Denying Ds demand for discovery (ix) Requiring D to produce discovery (a)Unless Ds counsel refuses and is placed in contempt (x) Courts are split regarding MTD based on violation of immunity agreement: tied up with merits if there is breach, but it is largely independent, unappealable because D is already harmed by trial Did D expressly waive his right to seek relief based on this error? No relief unless error in waiver or jurisdictional a. Plea agreements b. Stipulation c. On-the-record waiver Did D forfeit right by pleading guilty? Except a. Unless error in plea itself (ineffective, involuntary waiver) b. Error that cant be cured/bar second try (vindictive charging, GJ selection challenges) c. Error expressly reserved by conditional plea agreement Did D forfeit right by failure to raise before the trial court in a timely appropriate manner? a. Unless plain error (FRCrP 52(b); Olano) (i) Error: not expressly waived or waived by statute (STA) (ii) Plain: obvious by time of appeal (iii) Affected substantial rights: D has burden of showing that it made a difference in the outcome (iv) Seriously affects the fairness, integrity, or public reputation of judicial proceedings: bad enough Was there error and can it be established under the relevant standard of review? a. Abuse of discretion where judge had discretion (i) Evidentiary

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(ii) Sanctions for discovery abuse (iii) Challenges for cause b. Clearly erroneous: findings of fact (i) Whether prosecutor intended to use race as basis for peremptory (Batson) (ii) Whether client was advised on max sentence before plea c. De novo: Mixed questions of law and fact (i) Strickland: whether counsel was reasonable (ii) Dangerousness at bail hearing (iii) Manifest necessity for mistrial 6. Assuming error not waived or forfeited, relief? a. Double jeopardy, vindictive charging, and Speedy Trial constitutional error: remedy is barring reprosecution b. Where D must show prejudice to establish error itself, no need for harmless error analysis: (i) Brady: requires showing of reasonable probability that failure to disclose affected the outcome (ii) Darden: Improper argument (iii) Strickland: Ineffective assistance of counsel (iv) Youngblood: Improper destruction of evidence c. Structural errors: Impacts framework of trial and affects basic protections, without which, trial is fundamentally unfair; automatic reversals (Fulminante; Rose) (i) Improper exclusion of capital punishment juror because of views on DP (Gray) (ii) Racial discrimination in selection of grand jurors (Rose) (iii) Batson errors (iv) Denial of public trial (Waller) (v) Defective BRD instruction (Sullivan) (vi) Denial of self-representation (McKaskle) (vii)Biased judge (Tumey v. Ohio)

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XIV.

(viii) Denial of counsel (Gideon) (ix) Improper withdrawal of appointed counsel (Penson) (x) Counsel of ones choice (Gonzales-Lopez (xi) Conflicts where constitution mandates an inquiry (Holloway) (xii)Denial of right to consult with counsel during overnight recess (Geders) d. Constitutional errors: P must show beyond a reasonable doubt that the constitutional error was harmless (Chapman) (i) Admission of co-D statement in violation of confrontation could be harmless (ii) Griffin violation could be harmless (iii) Introduction of coerced confession could be harmless (Fulminante) (iv) Denial of counsel at PH can be harmless (Coleman) (v) Improper instruction on one element of the offense violates Sixth Amendment jury trial guarantee, but can be harmless (Neder) (a)Where the government does not produce evidence to dispute the element = harmless error e. Statutory errors are subject to harmless error analysis: Government must show error had no substantial effect on the verdict (Substantial effect is lower than BRD) C. Governments Right to Appeal 1. No constitutional right to appeal 2. Federal system and most states allow prosecution appeal a. Criminal Appeals Act of 1970: May appeal from decision, judgment, or order dismissing indictment or information or granting new trial after verdict or judgment except where appeal would violate Double Jeopardy clause 3. Prosecutor may have more opportunities for interlocutory appeal because this is their only chance a. Examples of interlocutory (i) Motion to suppress: if USAO certifies that appeal is not taken for purpose of delay and exclusion relates to a substantial fact of the case, P may appeal pre-trial (ii) Midtrial order directing government witness to respond to defense questions on matter claimed to be privileged: witness would have to refuse and court would hold witness in contempt so witness can appeal contempt order b. Rulings relating to sentences: P can always appeal sentences and rulings related to sentences (dont have to do with acquittal) so no need for special right to appeal Habeas Corpus A. Basic Contours

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1. Can only address federal claims, claiming that court violated federal law a. Cannot examine validity of state court rulings on state law 2. Source of the right a. Suspension Clause, Art. I: Congress cant suspend right to habeas relief except in cases of rebellion or invasion (i) After 14th Amendment, this may provide constitutional right to federal review of state criminal cases b. 28 U.S.C. 2241: prior to conviction (deportation, pre-trial detention) c. 28 U.S.C. 2254: Custody pursuant to state criminal conviction 3. Civil cases: apply rules of civil procedure 4. No right to counsel B. Judicial Restrictions 1. No relief on 4th Amendment claims (Stone v. Powell) 2. No enforcement of new rules declared after Ds appeal is final (Teague v. Lane) 3. State procedural default bars federal habeas claims (Sykes): If you didnt raise a claim in accordance with state procedure, D is barred from habeas review unless D can show: a. Cause and Prejudice (Sykes) (i) Cause for failure (a)Ineffective assistance of counsel during a proceeding where D had constitutional right to counsel (Coleman v. Thompson Petitioner must have complied with state procedure for raising the IAC claim (Edwards) (b)State interference: Brady; Amadeo v. Zant: DAs office covered up earlier Brady violation (ii) Prejudice from that failure (a)IAC and Brady already involve showing of prejudice, which also satisfies this prong b. Miscarriage of Justice (House v. Bell): more likely than not that no reasonable juror would have convicted in light of the new evidence (i) But open question whether error-free trial that resulted in conviction would be overturnable on habeas C. Statutory Limitations 1. 1 year statute of limitations, tolled by properly filed state post-convictions proceeding

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2. Claims must be exhausted and federal court may deny on the merits and dismiss with prejudice 3. Limited evidentiary hearings when facts were not developed in state court 4. Bars successive petitions except in limited circumstances 5. Deferential standard of review 6. Fast-track deadlines for capital cases (but no state has come up with a qualifying representation plan) D. Evaluating Merits of State Court Decision 1. Contrary to a. confronts indistinguishable set of facts and comes to a different result 2. OR Unreasonable Application of a. correct legal rule but unreasonably applied to facts or unreasonably extends or narrows (Terry Williams)

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