Anda di halaman 1dari 44


I. THE CHARGING DECISION Prosecutorial Discretion


Enforcement for Serious Crimes

Inmates of Attica v. Rockafeller (1973) has Discretion To Decide To Prosecute prison riot inmates allege revenge killings by Cos sue to require to investigate and prosecute has discretion re: decision to investigate, arrest, and prosecute regardless of statute mandating prosecution o NO standard for review, regulatory or statutory policies of prosecution too

many problems w/ ct supervising prosecutorial decisions substitution of cts decision to prosecute for USDA unwise
o in the absence of egregious violations ct. has no power to force prosecution o separation of powers issue cts. getting supervision would place reviewing court in undesirable and injudicious posture of becoming super-prosecutors

3 Obstacles to Claims Seeking to Force Prosecution

separation of powers judges dont know reasons why decline to prosecute scarce time and resources! standing private citizen lacks a judicially cognizable interest in prosecution or nonprosecution of another person EP violation standard o EP only prohibits intentional discrimination claim would only successful if could show declined to prosecute b/c of conscious decision to treat race differently

must also show discriminatory effect

U.S. v. Armstrong (1996) Selective Prosecution Claim Must be Supported by Clear Evidence That Similarly Situated Individuals Could Have Been Prosecuted but Werent charged w/ drug trafficking note racial disparity in state v. federal cases motion for discovery re: selective claim discretion is subject to constitutional constraints EP prohibits decision to prosecute based on unjustifiable standard: race, religion, or other arbitrary classification

to rebut presumption that hasnt violated EP must show, through some clear evidence, that similarly situated individuals of a different race werent prosecuted o study listing 24 by race and whether they were prosecuted NOT sufficient evidence

didnt ID any non-black individuals that could have been charged for same crime but werent Vindictive Prosecution
cant increase charges for same conduct after successful appeal presumption of vindictiveness any other circumstances: presumption acted in good faith must show improper motive o never happens proving vindictiveness pretty much impossible

Enforcement for Low-Level Crimes

Wayte v. U.S. (1985) Passive Prosecution Policy Constitutional refused to register for draft sent letters to governmental officials informing them hes not registering out of 674K who refused to register 16 prosecuted based on passive prosecution policy which prosecuted those who said they werent registering or those reported by others passive prosecution policy constitutional o not motivated by discriminatory purpose or discriminatory effect

those prosecuted selected themselves for prosecution by openly refusing to register after being reported and warned

hasnt shown prosecuted b/c of protest activities

o NO 1st Amendment violation policy furthered important government interest and didnt limit more speech than necessary to ensure goal

Methods of Charging o o 2 ways: indictment or information Indictment

Grand Jury
indictment formal written accusation of a crime, made by a grand jury and presented to a court for prosecution against the accused person

ALL federal felonies screened through GJ o GJ right not incorporated to states but most states have GJ requirements

o ex parte + secret presentation of evidence o failure rate <1%

Costello v. U.S. (1956) CANT Challenge Indictment for Inadequate or Incompetent Evidence Indictment Based on Evidence that would be Inadmissible @ Trial OK

o indicted for income tax fraud based solely on hearsay testimony from 3 PO
o NO constitutional requirement for evidentiary standard for GJ indictment based on hearsay valid 5th Amn. doesnt require have a kind of prelim. trial to determine competency and adequacy of evidence before GJ historical basis of GJ allowed to use own knowledge to make decision independence

waste time
no assurance of fair trial U.S. v. Williams (1992) NOT Required to Disclose Exculpatory Evidence to GJ o indicted for making false statements to influence a bank challenges

indictment b/c didnt present substantial exculpatory evidence to JGJ

o TC CANT dismiss an otherwise valid indictment based on failure to disclose exculpatory info historically GJ intended to be independent: scope of power to investigate no judicial authority needed, can investigate for suspicion or to ensure no violation manner of expressing power some const. protections afforded in trial n/a GJ

Preliminary Hearing

review informations
information formal criminal charge made by a prosecutor without a grand-jury indictment. o used to prosecute misd. in most states and ~ states use for felony too

Distinguished from GJ
adversarial has right to counsel

judge decides public

possibly dismissal rate present evidence can cross-x judge decides critical stage 6th Amn. right to counsel applies frequently waive resources: could seek indictment anyway, $$$

Joinder and Severance


FRCrimP R 8 Joinder of Offenses and of s

(a) Joinder of Offenses: indictment/information can charge 2+ offenses (fel. and misd.) if they are of the same/similar character, based on the same act or transaction, or a connected with or parts of a common scheme or plan (b) Joinder of s: indictment/information can charge 2+ s if alleged to have participated in the same act or transaction or same series of acts or transactions constituting offense(s). Can be charged in 1+ counts together or separately. All need not be charged in each count.

o FRCrimP 14 Relief from Prejudicial Joinder

(a) Relief: if the joinder of offenses or s in an indictment, information, or trial appears to prejudice a or ct can sever counts, trials, or provide any other relief that justice requires (b) s Statements: before ruling on motion to sever, court may order to produce any s statements it intends to use as evidence for in camera review o U.S. v. Velasquez (1985) CANT Charge Different People w/ Similar, but Different Crimes in 1 Trial 5 s: 5 cocaine trafficking, 1 heroin charges 3 conspiracy to retaliate against govt agents when a group of people are charged w/ participating in same crime, they are ordinarily tried together, even if evidence is stronger against some danger of prejudice to least guilty or b/c of confusion of multi- trial is in all but most unusually circs. considered outweighed by economies of a single trial in which all facets of crime can be explored once and for all misjoinder on heroin charges unrelated to other offenses, none of co s involved in heroin sales and nothing to suggest they were made pursuant to a common plan w/ cocaine trafficking

cocaine + heroin similar enough offenses to charge in same indictment (join offenses) NOT offenders re-trial cocaine weak evidence misjoinder could have prejudice BUT overwhelming evidence of guilt for heroin charges harmless error misjoinder cocaine + retaliation no showing retaliation was related to specific drug sale involved

BUT harmless error b/c overwhelming evidence of guilt CANT charge different people w/ similar, but different crimes in 1 trial multiple joinder must be same event/plan/transaction
o Zafiro v. U.S. (1993) TC Should Only Sever When Serious Risk of Compromising 1

s Specific Trial Rights

search warrant found lots of drugs, $$ all 4 arrested motion to sever denied based on mutually antagonistic defenses (all claiming they didnt know what was going on and blaming others) all convicted (conspiring to possess w/ intent to distribute) proper joinder TC should only grant severance if there is serious risk that joint trial would compromise one s specific trial rights or prevent jury from making a reliable judgment re: guilt or innocence mutually antagonistic defenses not prejudicial per se requiring severance NO right to severance just b/c less likely to be acquitted in joint trial



arraignment w/i ~24h after arrest determine bail

factors considered severity of crime

past conduct (esp. past incidents of skipping bail) s characteristics (local connections, wealth)

judges choices
release on recognizance sign agreement promising to show up

attach conditions to release in custody of specific person, bail, drug monitoring and treatment, check in w/ relevant authorities, seize passport order continued confinement NO conditions will reasonably ensure shows up for trial or serious danger to others o o

8th Amnd: Excessive bail shall not be required doesnt promise bail Stack v. Boyle (1951) Bail is Unconstitutionally Excessive When Set Higher than

an Amount Reasonably Necessary to Ensure s Presence @ Trial suspected communists challenge bail: originally $2500-$100K; venue moved to CA $50K/each
: evidence of $$, family connection, prior criminal records; : 4 people charged w/ same crime forfeited bail bail set at a higher figure than an amount reasonably calculated to assure will stand trial is excessive should be calculated based on standards relevant to ensuring particular s attendance @ trial o evidence that 4 other people forfeited bail insufficient evidence to justify o

U.S. v. Salerno (1987) Ct. Can Consider Dangerousness in Determining Bail

29 ct indictment RICO, fraud, extortion, conspiracy to commit murder denied bail b/c no condition(s) of release would ensure publics safety challenge Bail Reform Act of 1984 Bail Reform Act constitutional NO 5th Amnd violation o sufficient safeguards hearing, counsel available, high evidence standard, immediate appeal available + govt important general interest in protecting public from people indicted for serious crimes outweigh individual liberty interest NO 8th Amnd violation

o 8th Amendment doesn't require release on bail when Congress has mandated detention on the basis of compelling interest other than prevention of flight, like here
o primary function of bail is to safeguard courts role in adjudicating guilt or innocent but 8th Amnd. doesnt prohibit govt from pursuing other compelling interests through regulation of pre-trial release

Right to a Speedy Trial o Protections

6th Amnd In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial

statutes of limitations
DP delay unjust and prejudicial to may violate

o Barker v. Wingo (1972) 4 Factors Speedy Trial: Length, Reason, Assert, Prejudice murder co tried 1st b/c stronger case and needed his testimony 5 trials and 4y later co convicted bail didnt object until 12th continuance denied convicted

right to speedy trial different from other rights societal interest

deprivation may work to s advantage witnesses unavailable

more vague impossible to tell exactly when violated

right NOT quantified in specific number of days or months who fails to demand speed trial NOT waiver factor to consider

factors length of delay o acceptable length depends on circs. reason for delay
unacceptable reasons

o deliberate delay to interfere w/ defense o negligence, time o missing witness

s responsibility to assert right

o assertion strong evidentiary weight o failure to assert makes challenge hard to prove
prejudice assessed in light of 3 reasons for speedy trials: o prevent oppressive pre-trial incarceration disrupts family, cant have a job o minimize s anxiety and concern living w/ anxiety, suspicion, hostility

o limit impairment on defense incarcerated cant help gather evidence, find witnesses, etc. NO violation although significant delay and mostly w/o good reason, didnt seem want speedy trial and minimal prejudice 4y = significant delay only 7m was for good reason everything else was failure to properly try co minimal prejudice: didnt show any witness/evidence was unavailable, released on bail most of the time didnt assert right didnt object to continuances between 58-62 maybe hoped delay would result in dismissal, possibly gambling on co s acquittal

Speedy Trial Act of 1974

federal info/indictment must be filed w/i 30d of arrest or summons trial must be w/i 70d of filing info/indictment or first appearance, whichever later detained pending trial must start w/i 90d of detention
NOT including unavailability of or key witness, transportation, reasonable maneuvering by co or other proceedings involving (ALL delays caused by pre-trial motions necessitating a hearing even if reasonably necessary)

remedy dismissal w/ or w/o prejudice depending on seriousness of crime, circs. of delay, potential effect on administration of justice
usually complying w/ stat = compliance w/ 5th Amnd

U.S. v. Lavasco (1977) NO DP Violation for Indictment/Prosecution for Investigative Delay Even w/ Some Prejudice to s Case
o firearms charges indictment 18m after alleged crimes occurred s evidence of prejudice: w/i 1st month of investigation admitted stealing 5/8 guns w/ strong evidence of other 3, not much info gathered in next 17m; lost testimony of 2 material witnesses NO DP violation for prosecution after investigative delay, even if some prejudice to s case SoL is s primary protection ct. must consider reason for delay trying to ID participants other than not required to file charges as soon as P/C before determining that theyll be able to prove case BRD o unwarranted charges; delay

o investigative delay delays used to gain tactical advantages over o Doggett v. U.S. (1992) Excessive Delay Presumptively Compromises Reliability (Prejudice) 80 indicted for conspiracy to import and distribute cocaine left country couldnt be arrested drug charges in Panama U.S. police dont try to find him until 88 when name comes up in credit check w/ outstanding warrant entitled to relief when govt negligence causes delay 6x longer than generally sufficient to trigger judicial review, and when presumption of prejudice, albeit unspecified, is neither extenuated, as by acquiescence (Barker), nor persuasively rebutted Barker factors

o extraordinarily long delay

o to blame investigators made no serious effort to determine whether was really abroad o didnt know of charges couldnt assert right o excessive delay presumptively compromises trial reliability in ways that neither party can ID

consideration of prejudice isnt limited to the specifically demonstrable impairment




conditional plea plea of guilty or nolo contendere entered w/ ct approval and

consent reserving right to appeal any adverse determinations on 1+ pretrial motions

successful appeal plea w/d new one entered o

nolo contendere plea plea by which doesnt contest or admit guilt consider parties views, public interest in effective administration of justice

o guilty plea accused person's formal admission in court of having committed the charged offense

not guilty plea

Guilty Pleas as a Substitute for Trials o Plea Process

FRCrimP 11

failure to enter plea = not guilty plea

Advising and Questioning the : before accepting guilty or nolo contendere plea ct must inform and make sure understands: o can use any of s statements made under oath for prosecuting perjury

o right to plead guilty jury trial represented by counsel and have appted counsel right to confront and cross-x witnesses protection from self-incrimination testify and present evidence require witnesss attendance

o guilty plea accepted = waiver of rights o nature of pending charge and max. min. punishment
Henderson v. Morgan incorrect description of the crime charged in the guilty plea colloquy violated DP

o ct. authority to order restitution o ct obligation to apply sentencing guidelines o terms of any plea agreement provision waiving right to appeal or collaterally attack sentence
Ensuring the Plea is Voluntary: ct. must determine plea is voluntary and didnt result from force, threats, or promises (other than plea agreement) Determining the Factual Basis for the Plea: ct. must determine that there is a factual basis for the plea Withdrawing a Guilty or Nolo Contendere Plea: can withdraw plea

o before ct. accepts it o after ct. accepts but before sentencing if ct rejects plea agreement
can show fair and just reason for requesting withdraw

Finality of a Guilty or Nolo Contendere Plea: after sentencing cant w/d plea and it can only be set aside on direct appeal or collateral attack Recording the Proceedings: plea proceedings must be recorded by a court reporter or suitable recording device; guilty or nolo contendere pleas must include inquiries and advice to as required Harmless Error variance from the requirements of this rule is harmless error if it does not affect substantial rights o U.S. v. Dominguez-Benitez (2004) can only be successful in claiming judge didnt say required things under R11 if they can show there is a reasonable probability that, but for the R11 error, wouldnt have plead guilty U.S. v. Broce (1989) Fact that Decided they Wrongly Plead Insufficient to Set Aside an Otherwise Valid Guilty Plea plead guilty to 2 separate counts of conspiracy and didnt challenge plea colloquy or adequacy of counsel after conviction based on guilty plea is finalized and seeks to reopen the proceeding ask whether the underlying plea was both counseled and voluntary; if the answer is in the affirmative, the plea, as a general rule foreclosed collateral attack

o TC complied w/ R11
o fact that later decided they wrongly plead not sufficient evidence to set aside an otherwise valid guilty plea NC v. Alford (1970) Express Admission of Guilt is NOT Necessary for Valid Guilty Plea indicted for murder claimed innocence but plead guilty of lesser incl. offense b/c he faced CP if he didnt TC confirmed he wanted to plead can voluntarily, knowingly, and intelligently consent to imposition of prison sentence even if unwilling or unable to admit participation in acts constituting the crime o an express admission of guilt is not necessary for a valid plea

o guilty plea to avoid or reduce certain sentence isnt necessarily compelled or involuntary
o can accept nolo contendere pleas in which doesnt admit guilt same thing labeled differently o

Role of Defense Lawyers

Hill v. Lockhart(1985) NO Prejudice When Didnt Allege that If Given Correct Info He Would Have Insisted on a Trial Instead of Pleading Guilty

2y after plead guilty to murder and robbery files habeas b/c ct. appt. atty didnt tell him that as a 2x offender he had to serve sentence before eligible for parole
Strickland 2-part test applies to guilty plea challenges baesd on ineffective assistance of counsel: must show representation unreasonable and prejudicial o to satisfy prejudice requirement: must show that there was reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial NO prejudice when didnt allege that if he had correct info re: parole eligibility he wouldnt have plead guilty and instead would have gone to trial, nor any evidence that could support the conclusion that he placed particular emphasis on his parole eligibility in deciding whether to plead Glover v. U.S. (2001) 6-21m increase in prison sentence satisfied prejudice prong U.S. v. Barnes (1996) atty didnt realize qualified as career offender that would increase sentence 250x NO deficient performance time constraint of plea bargaining so close to change of plea hearing possible that he didnt or couldnt carefully analyze

Plea Bargaining o

3 Types charge bargains in exchange for guilty plea promises to drop or not add specified charges sentence recommendations agrees to recommend or not to oppose a particular sentencing range sometimes not followed by ct

sentencing range agreement agrees on sentencing range or that particular provision of sentencing guidelines or sentencing factor n/a

rare and prohibited in some JDs o Voluntariness

Brady v. U.S. (1970) Plea Bargains Legit; Plea NOT Invalid b/c Motivated by Sentence kidnapping initially plead not guilty changed mind when co was going to testify against him ct accepted guilty plea after asking 2x re: voluntariness 8y later challenges plea claiming coercion valid guilty plea

o plea not invalidated b/c it was motivated by s desire to receive certainty or probability of lesser sentence rather than take chances w/ trial

o voluntary plea: no threats or promises, able to weigh risks, competent counsel

o intelligent plea: competent counsel, aware of charge and evidence, no

evidence of incompetence, chose to plead after co did

o not entitled to w/d guilty plea after its acceptance b/c he miscalculated quality

of s case or likely penalties

Bordenkircher v. Hayes (1978) NO DP Violation When Carries Out Threat to ReIndict w/ Higher Charges that Would Already be Subject to b/c Didnt Accept Plea check forgery : plead guilty or youll be charged under 3 strikes law mandatory life sentence didnt plead re-indicted convicted NO DP violation when carries out threat made during plea negotiations to reindict on more serious charges when plainly subject to prosecution for if doesnt plead guilty to original charges o by tolerating, legitimizing, and encouraging plea bargaining S.Ct. necessarily

accepts that s interest is to persuade to give up right to plead not guilty not allowing that motivation would contradict purposes of plea bargaining and basically prohibit bargaining
o just openly presented w/ unpleasant alternatives of refusing to plead o as long as have P/C for crime and not based on unjustifiable standard discretion

Subject Matter of Plea Bargains

plea bargaining doesnt inherently undermine the voluntariness of resulting plea or validity of the harsher sentence imposed after trial BUT certain subjects are off-limits
U.S. v. Pollard (1992) Plea Wiring Constitutional unless Evidence of Bad Faith or No P/C espionage gives info to Israel during interrogation calls wife w/ secret code word to get rid of docs wifes illness gets exacerbated in jail : both plead guilty or no pleas at all both plea and gets leniency for wife 4y later [after wife gets out] challenges plea as involuntary plea wiring constitutional offer of adverse or lenient treatment for some person other than is NOT so coercive as to risk inducing false guilty pleas

o had P/C to arrest and prosecute both o no evidence of using bad faith to get more leverage: indicted and intended to prosecute wife OR offer leniency in exchange for pleas o practice = coercive or makes plea involuntary if it creates improper pressure that would be likely to overbear will of some innocent person and cause them to plead guilty:

physical harm threats of harassment misrepresentation

improper promises that have no relationship to s business (bribes) Newton v. Rumery (1987) journalist calls SA survivor but didnt actually know he was talking to survivor brings charges for witness tampering reach agreement to drop ALL charges in exchange for dropping civil claims under 1983 valid agreement voluntary: was sophisticated business man, not incarcerated, represented by experienced crim.def. atty who drafted agreement, considered for 3 days before signing

o possibility that some release-dismissal agreements may not be voluntary or knowing doesnt justify invalidating all agreements, esp. could be
U.S. v. Mezzanatto (1995) Voluntary and Knowing Waiver of Exclusionary Privilege of Plea-Statement Rules Valid

FRE 410 no statement in plea discussion can be used against party making them
plea bargaining condition that be truthful lied convo ended contradicting trial testimony want to into plea bargaining convo statements to impeach agreement to waive exclusionary provisions of plea-statement rules was valid and enforceable where conferred w/ his counsel after proposed waiver as condition of proceeding with plea discussion and never complained that he entered into waiver agreement unknowingly or involuntarily o w/o agreements may refuse to plea bargain o

Plea Bargains as Contracts

Santobello v. NY (1971) When s Promise Serves as an Inducement or Consideration for Plea Must be Fulfilled : plead guilty to lesser-included offense; : make no sentencing rec.

new def. atty w/d guilty plea b/c evidence from illegal search delays new recommends max sentence judge says isnt impacted by plea max sentence based on criminal history when plea relies on promise/agreement from to a significant degree to the point of being part of inducement or consideration must be fulfilled o even though judge said not influenced by it, justice and recognition of s duty re: promises in plea bargaining best served by remand Santobello + Brady can promise charging or sentencing concessions w/o involuntary plea but must keep its promises Marby v. Johnson (1984) Acceptance of 1st Proposed Plea Bargain DOESNT Create a Constitutional Right for Specific Enforcement After Its Withdrawn convicted burglary, assault, murder murder reversed sentenced to concurrent sentences plea offer: plead guilty get concurrent sentences accepts later w/d and changes offer to consecutive accepts later challenges s acceptance of 1st proposed plea bargain does NOT create constitutional right to have bargain specifically enforced after told it was a mistake and w/d offer o NO collateral attack b/c not product of deception, based on no unfulfilled promise, and voluntary and intelligent distinguished from Santobello plea wasnt induced by w/d offer knew what sentence would be fully aware of consequences of plea when made U.S. v. Traynoff (1995) reasonable and detrimental reliance is required for to be required to follow w/d plea agreement Rickets v. Adamson (1987) agrees to testify against co- for decreased sentence both convicted convictions reversed refuses to testify anymore because he fulfilled his agreement unless he gets certain additional things rescind plea agreement bring capital charges s breach of plea agreement by refusing to testify at co s retrial removed DJ bar to prosecution of on original charges, after had been sentenced and began serving term on lesser offense, where plea agreement provided that parties would be returned to status quo ante if refused to testify.



General Discovery Obligations

FRCrimP 16(a)
upon s request must disclose to o substance of any relevant oral statement made by in response to

interrogation by person known to be govt agent if intends to use @ trial

o written recorded statements w/i possession knows/should know exists

o written record of oral statement made re: interrogation

o = organization any statement made by officer , agent, or employee or someone personally involved in conduct o s prior criminal record o books, papers, data, photos, tangible evidence /i possession intended for

use @ trial and obtained from or belonged to

o results/records of any physical/mental exam or scientific test w/i possession, knows/should know exists, material to defense or intended to use @ trial

o summary of any expert witnesses intended to use @ trial including: opinions, reasoning, qualifications
DONT have to disclose: reports, memos, other internal govt docs made by atty or govt agent, or statements made by potential witnesses (safety concerns, possibly to prevent from creating defense to match evidence) FRCrimP 16(d) judge can, for good cause, deny, restrict, or defer discovery or inspection, or grant other appropriate relief U.S. v. Nobles (1975) work product doctrine applies to criminal cases

Constitutional Disclosure Obligations

Brady v. MD suppression of material evidence favorable to upon request violates DP, regardless of good or bad faith no timing for Brady disclosures DP presumably requires disclosure giving sufficient time to effectively use evidence U.S. v. Bagley regardless of request favorable evidence is material constitutional error when suppressed by if reasonable probability that had it been disclosed to result of proceeding would have been different

4 factors of materiality o undermine confidence in verdict

o doesnt need to show that undisclosed evidence would discount inculpatory evidence to be insufficient for conviction

o dont need harmless error review

o has discretion (NOT open file) BUT has a duty to know about favorable

evidence known by everyone acting on s behalf

Kyles v. Whitley (1995) Violation if Didnt Disclose Exculpatory Evidence that Could Have Reasonably Achieved a Different Result if Disclosed

old lady killed in grocery store parking lot evidence pointing towards guilt: 4 eyewitness IDs, same brand of pet food in house, gun found behind stove, purse and ID in garbate
didnt disclose (exculpatory evidence): informant gave conflicting statements, 2 witnesses didnt match (more like informant), list of cars in parking lot didnt include s car

favorable material evidence not disclosed if it had different result was reasonably possible violation o disclosure would have made s case weaker and s case stronger similarity of and informant informant more closely matched witnesss descriptions

difference in witnesss testimony about perspective of crime destroy witness credibility

other witnesses IDing would be damaing to b/c only saw him leaving

attack reliability of the investigation in failing to consider informant as suspect and tolerating serious possibility that incriminating evidence was planted
U.S. v. Ruiz Const. doesnt require to disclose impeachment material re: informants or other witnesses before entering into a plea agreement

Disclosure by o Constitutional Disclosure Obligations

asymmetrical no equivalent of Brady doesn't have constitutional or statutory requirement to turn over inculpatory evidence unrequested Williams v. FL (1970) Can be Required to Provide Notice of Alibi Defense and Witnesses

challenges FL RCrimP that required him to disclose whether hes going to use an alibi and details of alibi under 5th Amnd. NO 5th Amnd. violation in requiring to provide notice of alibi defense and disclose witnesses o 5th Amnd. doesnt give a constitutional right to wait until s case rest before announcing defense just like it doesnt entitle him to wait verdict on case-in-chief before deciding to testify

o rule didnt impact choice to present alibi, just sped up process

Brooks v. TN (1972) required to testify before any other witnesses cant decide to testify after 1st witness asked 1st ? violated s 5th Amnd + CANT be penalized for silence at close of states case by being excluded from testifying later o s interest in preventing testimonial influence by requiring to testify before

any other testimony for the defense is heard is NOT sufficient to override 's right to remain silent in trial
Wardius v. OR (1973) fundamentally unfair to require to disclose details of own case while at the same time subjecting him to the hazard of surprise re: refutation of evidence disclosed result rules provide for reciprocal discovery

Sanctions for Nondisclosure Taylor v. IL (1988) TC Can Exclude Testimony If Explanation for Not Complying w/ Discovery Rules Reveals Intentional Omission Intended to Gain Tactical Advantage
convicted attempted murder pre-trial list 4 people going to testify 2nd day of trial ( pretty much done with case), wants to add new witness because they know where person was offer of proof outside of court and witness testifies more favorably after case witness: saw victim w/ guns and saying they were going after BUT only met 2y after assault acknowledged that atty went to his house before trial

TC excluded witnesss testimony

6th Amnd compulsory process clause does not create absolute bar to preclusion of testimony of witness as sanction for violating discovery rule o considerations: integrity of adversarial system, interest in fair and efficient administration of justice, potential prejudice to truth-determining trial process

o TC can exclude testimony if partys explanation for refusal to comply with discovery rules reveals

omission was willful motivated by desire to obtain tactical advantage to minimize effectiveness of cross-x and presentation of rebuttal evidence
o appropriate in this case:

deliberately seeking tactical advantage counsel interviewed witness before trial + amended answer to discovery 1 day in to trial w/o including witness
other sanctions ineffective continuance doesnt punish, state bars not equipped to handle cases like this w/o more resources (hard to prove) o sometimes s get burned by atty bad decisions


JURY AND CRIMINAL TRIAL Right to a Jury Trial o Constitutional Basis

U.S. Const. Art. III 2 The trial of all c rimes, except in the case of impeachment shall be by jury
6th Amnd. all criminal prosecutions accused shall enjoy the right to a speedy and public trial by an impartial jury of the state and district wherein the crime shall have been committed Duncan v. LA (1968) right to jury trial is a fundamental right and is incorporated to state via 14th Amnd.

o prevent govt oppression o protect against unfounded criminal charges to eliminate enemies
o safeguard against over-zealous and/or biased and compliant judge o opportunity to seek common-sense judgment of jury rather than judge

o reluctant to give so much power over citizens to judge(s) o Purpose of Jury

Sparf v. U.S. (1895) jury CANT nullify the law (ignore judges instructions and decide based on their opinion of what law should be

ct responsibility to declare law; jury applies it

U.S. v. Thomas (1997) potential jurors who ID themselves as potential nullifiers can be excluded def. atty CANT argue or present evidence for a nullification defense o

When Right Attaches

Duncan v. LA n/a to petty crimes Baldwin v. NY (1970) line NOT between felonies and misdemeanors Lewis v. U.S. (1996) strong presumption against 6th Amnd. for crimes w/ max punishment >6m in prison UNLESS it also involves additional statutory penalties so severe as to indicate legislature considered offense serious Patton v. U.S. (1965) NO constitutional right to insist on bench trial

Jury Composition o Size

Ballew v. GA (1978) Less than 6-Member Jury Unconstitutional

obscenity case tried w/ 5 jurors

right to jury trial applies b/c punishment 6+m prison jury of only five persons unconstitutional o 6 member jury ok

big enough to promote group deliberation prevent outside intimidation provide representative cross-section of community o less than 6 members impairs jurys functions memory problems
likely to overcome member bias risk of convicting innocent person inconsistency hung juries b/c 1 minority view will not hold out as long as if there were 2 o unanimity requirement doesnt solve problems doesnt show meaningful group deliberation, memory, or truly represent community o no significant state interest in reducing size


Apodaca v. OR (1972) 8 justices: 6th Amnd. must mean same thing in state and federal trials 5 justices: 6th Amdn. requires unanimity

Trial Location

vicinage place where a crime is committed or a trial is held; the place from which jurors are to be drawn for trial; esp., the locale from which is entitled to have jurors selected U.S. v. Rodriguez-Moreno (1999) charged w/ using firearm in crime of violence can be tried in any district where crime of violence occurred even if gun wasnt used there U.S. v. Cabrales (1998) charged w/ money laundering cant be tried in MO b/c even though $$ came from illegal drug sale in MO, money laundering only occurred in FL

Fair Cross-Section Requirement

reasons for fair cross-section requirement guarding against exercise of arbitrary power preserve public confidence in fairness of CJ system promote civic responsibility
Lockhart v. McCree (1986) death qualification DOESNT violate fair cross-section requirement

fair cross-section doesnt invalidate for-cause or peremptory challenges OR require petit juries to reflect composition of society at large groups defined only by shared opinions are not distinctive groups o exclusion of people opposed to CP doesnt contravene any 3 purposes for fair cross-section requirement:
excluded for legally valid reason little danger of arbitrarily skewing jury excluded for a reason w/i their control no appearance of unfairness can serve as jurors in other cases no substantial deprivation of their basic rights of citizenship Duren v. MO (1979) Systematic Exclusion of Distinctive Group that is Unreasonable and Unfair re: # of Persons in Community and Manifestly Inconsistent w/ Significant State Interest Unconstitutional

MO stat.: women automatically exempt from jury duty unless they request to be on it

systematic exclusion of women that results in jury venires averaging less than 15% female violates fair cross-section requirement

o must show excluded group is distinctive

Taylor women are distinctive

representation of group is unfair and unreasonable re: # of persons in community 50%+ population is women but only 14% women in venire underrepresentation due to systematic exclusion in jury selection process manifestly inconsistent w/ significant state interest
domestic responsibilities insufficient justification for disproportionate exclusion Strauder v. WV (1800) trial of black by jury from which blacks have been purposefully excluded violates EP Swain v. AL States purposefully or deliberate exclusion of AA from juries based on race violates EP Batson v. KY (1986) uses peremptory challenges to strike all 4 AA jurors in venire no AA in petit jury right to be tried by jury selected by non-discriminatory means: o NOT excluded based on race or false assumption that members of race are categorically unqualified as jurors

o undermine public confidence in system

for successful claim of discriminatory selection of venire must show o o

member of racial group + has removed jurors of that particular race peremptory strikes raise inference of discrimination 1st strike (even if racially-motivated) free no pattern cant offer a race-neutral explanation for strike dont need explanation sufficient for cause, but cant say just because

lower ct refused to consider claim despite timely objection remand

concurrence (Marshall): get rid of peremptory challenges completely 1 or 2 peremptory challenges can get rid of certain types of jurors but can be explained away Miller-El v. Dretke (2005) s decision to seek jury shuffle rearranging order in which members of venire panel are seated and questioned when predominant number of AA are seated in front + decision to delay formal objection to s shuffle until after new racial composition is revealed suspicion that seeking to exclude AA from jury and can be considered to determine whether s proffered race-neutral explanation is pre-textual J.E.B. v. AL ex rel. T.B. (1994) Batson Extended to Gender using gender-based peremptory challenges violates EP gender stereotypes insufficient justification for gender-based challenges even w/ some truth must avoid superficial judgments that will stigmatize and perpetuate historical patterns of discrimination Powers v. Ohio (1991) has Standing to Object to Race-Based Exclusions of Jurors Via Peremptory Challenges Regardless of Whether and Jurors Same Race under EP has standing to object to race-based exclusions of jurors through peremptory challenges whether or not and excluded jurors share same race o race-based peremptory challenges DONT survive EP just b/c all races

subject to equal treatment white jurors subject to same risk of peremptory challenges based on race as all other jurors
Acceptable Race-Neutral Reasons for Race-Based Peremptory Challenges Hernandez v. NY challenges based on perceived problems w/ bilingual jurors acceptance of official translation of Spanish testimony = race neutral Purkett v. Elem (1995) striking black jurors based on appearance = race neutral o appropriate focus is on genuineness of proponents race-neutral motive rather than reasonableness o

Impartial Jury

Wainwright v. Witt (1985) prospective juror lacks impartiality only if s/he has views about a case strong enough to prevent or substantially impair the performance of juror duties impartiality NOT no knowledge of facts or opinions about case


Ham v. SC (1973) black civil rights activist must be able to question jurors about racial bias b/c race related to defense Ristaino v. Ross (1976) Ham reflected an assessment of whether under all circs. presented there was a constitutionally significant likelihood that, absent questioning about racial prejudice, jurors would not be impartial o

simple assault, no racial lens required

Rosales Lopez v. U.S. (1986) inter-racial violent crime alone insufficient to create const. need to question re: racial prejudice need more substantial indications of likelihood of racial ethnic prejudice impacting jurors impartiality to be unconstitutional Turner v. Murray (1986) capital accused of interracial crime is entitled to have prospective jurors aware of victims race + questioned re: racial bias

Death Penalty
Witherspoon v. IL (1968) persons opposed to CP can be excluded on impartiality grounds if it is unmistakably clear that

o o

automatically vote against CP regardless of evidence attitude towards CP would prevent impartial decision re: guilt

Wainwright v. Witt (1985) standard: will jurors view prevent or substantially impair performance of duties as a juror in accordance w/ instructions and oath?

bias cant always be determined by Q&A

o must give deference to TC impression that juror would be unable to faithfully and impartially apply law b/c 1sthand impression

Lockhart v. McCree (1986)

o : excluding jurors who would be impartial re: guilt/innocence but opposed to CP violates right to impartial jury

o impossible to exactly balance impartiality const. presumption that jury selected from fair cross-x is impartial regardless of actual mix of viewpoints as long as jurors can conscientiously and properly carry out sworn duty to apply law to facts Influences on Jury o Publicity

Mu-Min v. VA (1991)

convicted murderer escapes from work detail and murders someone else case sensationalized

o confession = conscious guilt o could have been executed for prior crime except CP was illegal o prior criminal history o killed then ate lunch o future danger to society
2/3 prospective jurors heard something about case only 1 admits cant be impartial all selected jurors didnt claim formed opinion or bias/prejudice towards TCs refusal to ? prospective jurors re: specific contents of news reports did NOT violate 6th Amnd right to impartial jury or 14th Amnd DP o NO Const. right to ? re: content of what each juror has read/heard/seen before trial

o TC asked 4 questions about pretrial publicitys effect on them THEN additional voir dire in panels of 4 each time individual juror indicated had knowledge re: case from outside sources TC asked whether formed an opinion
o although ?s re: content of publicity would be helpful to assess impartiality

TCs failure to ask ? must render s trial fundamentally unfair o media is too prevalent + too hard to find people that havent heard anything o TC are best able to judge the severity and prejudicial effect of pre-trial publicity
Patton v. Yount (1984) relevant question isnt whether community remembered the case from 1st trial, but whether jurors @ trial had such fixed opinions that they couldnt impartially judge s guilt o

Improper Prosecutorial Argument

Darden v. Wainwright (1986) Did Improper Arguments So Infect Trial as to Make it Unfair to the Point of Denying DP? furniture store robbery, killed 1 owner, SA another, shot kid who came to help s closing argument: calling animal, wish victim had shot in the head and in the face (graphic description), wish was killed, CP only way to prevent future crimes s statement DIDNT deprive right to fair trial o only question: did comments so infect the trial to make it unfair to the point of

denying DP? NOPE

o although improper to say CP only way to prevent future crime and re: animal

b/c some comments in response to s closing arguments + harmless error (?) b/c significant evidence of guilt didnt manipulate or misstate evidence jury instruction
s rebuttal closing argument repaired damage Berger v. U.S. (1935) has equal duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one Donnelly v. DeChristoforo (1974) closing argument: I honestly and sincerely believe that there is no doubt in this case conviction affirmed b/c TC quickly told jury statements not evidence + overall impact was insufficient for DP violation U.S. v. Young (1985) closing argument: intentionally w/h exculpatory evidence + no one here believes intended to defraud victim closing argument offered personal opinions about guilt conviction affirmed s statement in response to s + no plain error requiring ct to overlook fact that didnt object Caldwell v. MS (1985) capital sentencing phase : have mercy; : jurys decision for CP isnt final o NOT invited response didnt have much to do w/ mercy plea o violate 8th Amnd. by suggesting that ultimate punishment decision wasnt w/ jury

s Rights o [Not to] Testify

Griffin v. CA (1965) cant comment on not testifying punishing for exercising Const. right Carter v. KY (1981) TC must instruct jury NOT to draw any adverse inferences from s silence if requested

Doyle v. OH CANT use silence after Miranda warnings Mitchell v. U.S. use of s silence @ sentencing unconstitutional

Physical Presence

IL v. Allen (1970) TC Has Discretion to Deal w/ Disruptive and Defiant when was disruptive and defiant TC has substantial discretion to deal o bind and gagging o contempt o removing until agrees to behave properly Holbrook v. Flynn (1986) NO DP violation for requiring to be surrounded by plainclothes numerous police in ct. KY v. Stincer (1987) Only Has Right to Be Present at Stages of Criminal Proceeding in which it is Crucial for to be Present NO right to be present @ CSA survivors competency hearing

o NOT giving substantive testimony

o didnt show his presence would have been useful Portuondo v. Agard (2000) CAN Comment on Testifying s Ability to Hear All Witness Testimony and Possibly Tailor Testimony testifies closing argument: heard all evidence before testifying and had opportunity to tailor testimony comment didnt violate 6th Amnd. right to be present @ trial o no reason to treat testifying s differently than other witnesses witnesss ability to hear prior testimony and tailor his/her testimony threatens integrity of trial whether witness is just witness or testifying o cant sequester appropriate to comment on presence during other testimony to help jury consider credibility According Griffin + Agard?

broad reading no burden on invoking right to testify, regardless of reason narrow reading wont burden invocation when there could be guilty or innocent reason

o innocent reason dont want to expose prior convictions, dont want to be tricked, serious public speaking anxiety
Scalia says Griffin is dumb but does Agard weaken Griffin enough to allow to comment on silence?

o problem determining guilty or innocent reasons o dont know potential groundwork for pushing towards limiting to only innocent reasons o To Obtain Evidence

AZ v. Youngblood (1988) CSA evidence either not properly preserved or too small for testing must show bad faith of police in failing to preserve potentially useful evidence otherwise NO DP violation

o limit polices responsibility to preserve evidence to reasonable bounds o limits cases only where justice requires o Confrontation

Crawford v. Washington (2004) husband and wife confront victim over rape allegation husband stabs victim claiming self-defense during interrogation wife: victim didnt have weapon TC admits wifes statement to police b/c sufficient indicia of reliability convicted criminal case + statement used against + witness not on stand/unavailable CC issue testimonial out of court statements by witnesses are INADMISSIBLE under CC unless witnesses are (1) unavailable and (2) had prior opportunity to cross-x, regardless of whether ct thinks theyre reliable o historical CC adopted to keep ex parte examinations out of evidence [Sir Walter Raleigh] o Roberts is unpredictable and inconsistent o wifes statement violates CC inadmissible reversed

o leave definition of testimonial for another day but minimally includes preliminary hearing testimony grand jury testimony testimony at previous trial

custodial police interrogations Davis v. Washington (2006) 2 DV s challenge testimony to police/911 as testimonial statements violating CC o Washington police testify about responding to 911 call for DV + admit 911

tape of victim IDing as attacker convicted

o Hammon police respond to DV + testify about what victim told them and her

affidavit for battery convicted CC applies only to testimonial statements

o testimony a solemn declaration or affirmation made for the purpose of establishing or proving some fact

primary purpose test

o non-testimonial statements (NOT subject to CC) when made in the course of a police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency 911 call = non-testimonial NO CC violation admissible affirmed

describe events as occurring

frantic, present tense, immediate emergency info elicited intended to help resolve emergency, NOT to learn about what happened in the past
o testimonial statements (subject to CC) when the circumstances objectively indicate that there is no ongoing emergency and the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution interrogation = testimonial CC violation inadmissible remanded

statements made during interrogation into criminal conduct to elicit what HAD happened no immediate emergency: no circumstantial evidence of current fight and victim stated things were fine statements obtained under circumstances very similar to witness testifying on direct-x
Gray v. MD (1998)

indicted for murder joint trial co s confession admitted but TC required s name redacted or say deleted when introduced/testified about; Q: after co confessed arrested A: yes; testified denying participation; co didnt testify

o Bruton 6th Amnd. prohibits introduction of confession in joint trial of non-

testifying co w/ limiting instruction that jury not to consider as evidence of s guilt

o Richardson v. Marsh co confession admissible in joint trial w/

appropriate limiting instruction and redacted to eliminate s name and any reference to s existence

Bruton rule prohibiting introduction during joint trial of confession of nontestifying codefendant which names defendant as perpetrator extends also to redacted confessions in which name of defendant is replaced with obvious indication of deletion, such as blank space, word deleted, or similar symbol
o redactions that simply replace names w/ obvious indication of alteration closely

resemble Bruton violate 6th Amnd o obvious deletion may make deletion stand our more give confession more importance
o redacted confession facially incriminating confessions language and PO

testimony about it obvious redaction points to


RIGHT TO COUNSEL The Constitutional Requirements


6th Amendment: shall enjoy a right to have counsel to assist in defense Right to Assistance of Counsel at Trial

Powell v. AL (1932) Special Circumstances Rule DP requires counsel in capital cases when in capable of adequately making own defense b/c ignorance, feeble-mindedness, illiteracy, etc.

must provide counsel early enough to make a difference

Hamilton v. AL (1961) General Right to Counsel in ALL Capital Cases Johnson v. Zerbst (1938) Extends Powell to Non-Capital Federal Criminal Prosecutions

realistic recognition that average doesnt have professional legal skill to protect self, esp. w/ professional prosecutor Betts v. Brady (1942) Must Have Special Circs. to Get Appted. Counsel Absence Would be Offensive to Common Ideas of Fairness OVERRULED BY GIDEON V. WAINWRIGHT

non-capital cases only appt counsel when absence would be offensive to common ideas of fairness
Gideon v. Wainwright (1963) Fundamental Right To Counsel Applies to States b&e w/ intent to commit misdm. (non-violent, no racial issues) deny request for counsel self represented convicted 6th Amnd incorporated via 14th Amnd to states indigent in state ct. has right to counsel

o right to counsel = fundamental right

o w/o counsel cant have fair trial professional s + s who can afford hire attys counsel is NOT a luxury, its a necessity Argersinger v. Hamlin (1972) Absent K/I Waiver, NO ONE Can be Imprisoned for an Crime, Regardless of Classification Unless Represented by Counsel

Absent knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor or felony, unless he was represented by counsel at his trial o non-felonies tried w/o jury arent necessarily less complicated counsel still may be needed
Scott v. IL (1979) Actual Punishment v. Authorized Punishment to Determine Right to Counsel

convicted theft fined $50 after bench trial; max penalty was $500 fine and/or 1y jail
6th and 14th Amnd require only that NO indigent criminal be sentenced to a term of imprisonment unless the state has afforded him the right to assistance of appointed counsel in his defense

o right to counsel based on actual punishment

o no jail no right to counsel dissent authorized punishment theory better

o focus on potential penalty

o better predictor of stigma resulting from conviction o always used by S.Ct. o no administration problems know before trial whether counsel required o constitutional rights cant be based on state budget
Nichols v. U.S. (1994) Validly Uncounseled Misdemeanor CAN Be Used to Enhance Punishment for Subsequent Conviction felony cases in contrast to misd. charges Const. requires indigent be offered appointed counsel unless that right has been intelligently and competently waived uncounseled misdemeanor conviction, valid due to absence of imposition of prison term, CAN be used to enhance punishment at subsequent conviction AL v. Shelton (2002) unrepresented misdemeanor assault conviction max 1y punishment suspended prison sentence for 2y unsupervised probation 6th Amnd prohibits activation of a suspended sentence upon s probation violation incarceration for uncounseled underlying offense deprives s liberty

o actual imprisonment rule

o NO person can be imprisoned for any uncounseled offense

o other states can pay for it, so can AL

NO suspended sentence that may end up in actual deprivation of person's liberty w/o representation in prosecution for crime charged o

Counsel on Appeal and Other Forms of Assistance

Griffin v. CA State CANT structure appeal process so that it denies an effective review to indigents while permitting it to those w/ $$$ Douglas v. CA State must provide counsel to indigent on appeal regardless of TCs view that counsel would be useful/useless Ross v. Moffitt (1974) State NOT Required to Provide Indigent s Counsel for Discretionary Appeals represented @ trial and immediate appeal as of right counsel required for discretionary appeals to St. S.Ct. or U.S. S.Ct.? DP DOESNT require state to provide counsel for discretionary appeal to St. S.Ct. o differences between trial and appeal: initiates appeal + s atty attacks rather than protects

EP DOESNT require state to provide free counsel on discretionary appeal to St. S.Ct. or U.S. S.Ct. where: o would have, at very least, a trial transcript, a brief on his behalf in CoA setting forth his claims of error, and usually CoA opinion

o S.Ct.s standard for granting or denying review was not whether there had been a correct adjudication of guilt practice only unfair if indigents are singled out and denied meaningful access to appeals
Evitts v. Lucey (1985) right to counsel includes right to have effective counsel; unrepresented s on appeal face same problems as @ trial U.S. v. McCollom (1976) statute providing free transcript to indigent s for habeas corpus only if TC certifies claim isnt frivolous and transcript is necessary constitutional could have appealed directly and got free transcript automatically chose not to too bad Williams v. IL (1970) statute CANT increase max jail sentence if failed to pay fine when didnt pay b/c indigent Tate v. Short (1971) statute CANT convert fine into jail where unable to pay fine

basically would be punishing people who couldnt pay fine w/ jail but people who could pay convicted of same sentence only got fine
Bearden v. GA (1983) CANT Deprive Probationer of Freedom Based Solely on Inability to Pay Fine at No Fault of s

in probation revocation proceedings ct must determine reasons for failure to pay fine:
o o

fail w/o making bona fide efforts to legally obtain $$$ revoke probation fail after making sufficient efforts to legally obtain $$$ consider alternative punishments
only AFTER alt. measures insufficient to meet state interests imprison

Ake v. OK (1985) when sanity @ time of crime is a significant factor in trial, state must provide competent psych for eval, prep, and present defense + must have access to psych expertise if future dangerousness is relevant as an aggravating factor in capital sentencing

Critical Stage

Coleman v. AL (1970) right to counsel applies at all critical stages of a criminal prosecution

criminal prosecution begins when adversary judicial proceedings begin (initial appearance or any formal charging process) final sentence determination by TC
critical stage = any formal interaction between and that could adversely effect s ability to effectively exercise legal rights and any informal proceeding that is designed or likely to elicit incriminating info o preliminary hearings o initial appearance o arraignment o warrant execution o post-sentencing o parole revocation (unless special circs. timely and colorable claim that hasnt committed violation or substantial reasons justify or mitigate violation making revocation inappropriate) o habeas corpus/collateral attack proceedings right to be heard @ prison disciplinary hearings adversely effecting liberty interest, but not necessarily counsel

Effective Assistance of Counsel o Meaning of Effective Assistance

McMann v. Richardson if right to counsel is guaranteed must be competent counsel

prohibited interferences w/ atty-client relationship conference during over night recess between direct and cross-x
testifying or when

closing statement in non-jury trial old standard: mockery of justice ineffective only if trial reduced to farce/charade new standard: consul must possess and exercise legal competence customarily found in JD legitimization of plea bargaining restricted habeas
Strickland v. Washington (1984) Successful Ineffective Assistance of Counsel Requires: Deficient Performance AND Prejudice against counsels advice confessed to all charges and waived right to advisory jury in capital sentencing phase

counsel decided not to present evidence re: background, emotional state, character, excluded rap sheet, doesnt request presentence report which would show more bad evidence, didnt cross-x medical experts defective counsel to reverse conviction or death sentence must show: o o deficient performance in an objective sense AND prejudice resulting from deficient representation sufficient to deny fair trial must show reasonable probability that but for counsels errors result would have been different challenge death sentence: reasonable probability that absent errors sentence would have determined balance of aggravating factors and mitigating factors wouldnt warrant CP challenge conviction: reasonable probability that absent errors factfinder would have had reasonable doubt re: guilt
effective counsel reasonable strategic decisions based on info and resources available o aggravating circs.

o omitted evidence wouldnt change result and actually may have been more harmful
no showing of prejudice prejudice presumed when

actual or constructive denial of counsel certain kinds of state interference

counsel failed to function as adversary (U.S. v. Cronic) o Bell v. Cone s counsel fails to call witnesses and waives closing argument @ sentencing hearing doesnt fail as an adversary Cronic claims rare

counsel conflict of interest Williams v. Taylor

counsel ineffective when

didnt investigate abusive past based on error in interpreting law

didnt intro evidence borderline MR, prior cooperation w/ police, character

testimony from prison officials: least likely to be violent or dangerous, went to school and thrived in structured environment
prejudice o fact that: turned self in and cooperated w/ police, felt remorse, abused as child, borderline MR, violent behavior result of compulsive reaction could have influenced jurys decision re: moral culpability o

mitigating evidence unrelated to dangerousness may affect jurys

sentencing even w/o undermining or rebutting s case

Roe v. Fores-Ortega (2000) counsel ineffective if doesnt consult w/ client when reason to think o

rational would want to appeal

o this particular reasonably demonstrated to counsel interest in appealing when failure to consult deprives of right to appeal prejudice presumed if shows reasonable probability that but for counsels deficient failure to consult re: appeal he would have timely appealed Hill v. Lockhart (1985) to satisfy prejudice, must show that there is reasonable probability that, but for counsels errors, he would NOT have pleaded guilty and would have instead insisted on going to trial Nix v. Whiteside (1986) reasonable for atty to dissuade/threaten consequences for client for perjury NO prejudice no claim that result would have been different if lied under oaht o if conflict between and counsels ethical obligations = prejudice all convictions would be suspect if sought to get acquitted by illegal means Glover v. U.S. prejudice when an erroneous sentencing calculation would have been corrected on appeal if appeal filed on time Rompilla v. Beard (2005) ineffective assistance counsel failure to examine file on s prior conviction for rape and assault at sentencing phase of capital murder trial when o knew seeking CP by proving had a significant history of felony convictions indicating the use or threat of violence, an aggravator under state law, and, further,

o knew that would attempt to establish this history by proving s prior conviction for rape and assault, and would emphasize his violent character by introducing a transcript of the rape victim's testimony given in the earlier trial prejudice @ sentencing phase in capital murder trial counsels failure to look at file containing potential mitigating factors, incl. info about childhood (poverty) and mental health (schizophrenia and other disorders, despite 9y school functioning @ 3rd grade level), that was very different from anything else heard

Implications of Right to Counsel


Right to Proceed Pro Se

Faretta v. CA (1975) State CANT Force Counsel on When Insists on Defending Self; Constitutional Right to Conduct Own Defense preliminarily allowed to defend self TC questioned about hearsay and juror challenged and decided didnt make K/I waiver appt public defender state CANT force representation when doesnt want it o CL rule: no crim can have counsel forced upon him against will o if doesnt want counsel NOT going to be helpful and possibly harmful

to make KIV waiver should know risks and dangers of self-representation: o clear waiver o literate o competent o voluntary o understand risks o knew some rules still applied o dont care didnt know legal rules
Martinez v. CoA of CA (2000) NO right to be pro se on appeal interest in preserving integrity and efficiency of legal system v. s interest in self-representation People v. Reason

standard to waive counsel:

o has sufficient present ability to consult w/ atty w/ reasonable degree of rational understanding and a rational and factual understanding of proceedings against him

o KIV waiver
McKaskle v. Wiggins (1984) Occasional Unsolicited Assistance by Standby Counsel does NOT violate 6th Amnd. as long as Retains Control over his Defense couldnt decide whether wanted counsel ct. appt standby counsel mere occasionally unsolicited assistance by standby counsel DOESNT violate 6th Amnd. as long as retains control over his defense

right of self-representation is not violated by standby counsel unless:

o substantially interferes w/ s significant tactial decisions

o assumes control over examination of witnesses

o speaks for on material issues against wishes o otherwise destroys jurys perception that is representing self Anders v. CA if lawyer sees no appealable issues, file a brief that says: indicate review record etc. and don't believe meritorious grounds for appeal and request to be relieved as counsel, ID issues that might be arguable on appeal (non-frivolous) to assist appellate court


SENTENCING Introduction
o mandatory sentencing statutorily specified penalty that automatically follows a conviction for the offense, often with a minimum mandatory term. aka determinate sentencing; fixed sentencing o indeterminate sentencing sentencing that is left up to the court, with few or very flexible guidelines

aka discretionary sentencing

o presumptive sentencing a statutory scheme that prescribes a sentence or range of sentences for an offense but allows the court some flexibility in atypical cases o o o

Furman v. GA CP w/o guidelines for decision making unconstitutional Gregg v. GA statutory guided decision for CP constitutional Lockett v. Ohio ALL relevant mitigating circs. must be considered by jury

McClesky v. Kemp racial discrepancies re: CP inevitable result of necessary

discretion NOT systematic defect o Considerations

cant sentence based on prior felony convictions that violated 6th Amnd (counsel) can sentence based on uncounseled misdemeanor conviction when no 6th Amnd right to appt counsel perjury @ trial admissible + doesnt unconstitutionally burden s right to testify cant consider s choice not to testify at sentencing, even if plead guilty can consider racial motivation for crime BUT NOT abstract beliefs unless directly relevant cant sentence on retrial b/c appealed TC must list legit specific reasons: conduct after sentencing, convictions for charges pending @ sentencing limitations n/a to new trial for misdemeanor, 2nd jury trial w/ jury sentence, resentencing judge after jury sentence, re-sentencing after vacated guilty plea can victim impact statements as long as not to prejudicial to violate FRE or DP, but CANT contain opinion that should get CP

Substantive Limits

Ewing v. CA (2003) 3 strikes law long crim. history of theft, battery, drug possession currently convicted felony grand theft for stealing $1200 golf clubs sentenced 25-life

o Rummle v. Estelle constitutional to sentence 3x offender to life w/o parole fed. cts should be reluctant to review legislatively mandated sentences successful challenges should be rare o Hutto v. Davis constitutional sentence to 2 20y consecutive sentences for possessing and distributing pot o Solem v. Helm unconstitutional to sentence life w/o parole for 7th nonviolent felony

3 factors for proportionality gravity of offense vs. harshness of penalty sentences in same JD sentences for same crime in other JDs

o Harmelin v. MI life w/o parole constitutional for possessing 672g cocaine

proportionality only considered for CP 4 principles primacy of legislature legit peneological schemes nature of federal system objective factors

8th Amdn. doesnt require strict proportionality ONLY no grossly disproportionate NOT grossly proportionate constitutional when justified by states public safety interest in incapacitating and deterring recidivist felons and amply supported by s long and serious criminal record

o reflects rational legislative judgment entitled to deference o reasonable basis to believe increased sentences advance CJ goals
U.S. v. Bajakajian (1998) convicted of carrying $375K cash out of country w/o reporting forfeit all monies

unconstitutional sentence gravity of the crime v. punishment is grossly disproportionate o underlying conduct permitted o no other criminal involvement
o no articulable correlation to any govt injury

Applicability of Rules of Constitutional Criminal Procedure o NOT all rights apply to both guilt-innocence phase and discretionary sentencing phase

right to counsel confrontation o

Williams v. NY (1949) Sentencing Judge NOT Limited to Info Presented at Trial

convicted 1std murder jury recommends life TC: death based on info from probation office that wasnt subject to cross-x, no standard of proof: prior [uncharged, unconvicted] burglaries, morbid sexuality, menace to society, personal belief of guilt

sentencing complies w/ DP requirements b/c sentencing judge has wide discretion in sources and types of info used to assist in determining kind and extent of punishment w/i legal limits sentencing judges NOT limited to info presented @ trial

judge considered evidence presented @ trial and additional information from unconfronted witnesses different evidentiary standards for guilt and sentencing
o guilt limited evidence to not waste time o sentencing need to have all info possible to have punishment fit , not just crime

Gardiner v. FL (1977) modern CP sentencing must be guided by statutory aggravating circumstances DP violation when sentence was partially based on info had no opportunity to explain or deny
o o In re: Winship (1970) DP protects against conviction except upon proof BRD of every fact necessary to constitute crime with which he is charged o Mullaney v. Wilbur (1975) CANT have burden to disprove an element of the crime by calling it affirmative defense o

Patterson v. NY (1977) a defense that negates blameworthy but doesn't negate an

element of the crime is affirmative defense and has burden of proof

o McMillan v. PA (1986) Sentencing Factor Only Needs to be Proved by Preponderance of the Evidence 4 consolidated cases: aggravated assault, voluntary manslaughter, robbery w/ gun TC rejected state mandatory minimum sentence rule if judge finds (PoE) visibly possessed gun @ time of crime NO DP violation visible possession of firearm doesnt need to be proved by at least clear and convincing evidence before it can be used to impose mandatory minimum sentencing under stat. when it is considered to be a sentencing factor rather than an element PoE standard sufficient legislative intent to be sentencing factor doesnt change definition of any offense or add element just states exact weight having gun during crime should be given in sentencing o Walton v. AZ (1990) AZ statute that gives TC responsibility to find aggravating circumstances for CP constitutional OVERRULED BY APPRENDI

6th Amnd doesnt require specific findings to support CP to be made by jury aggravating circs. not separate offense or penalty GUIDE [not] finding aggravating circ doesnt convict or acquit

Mandatory Sentencing and Const.

Mistretta v. U.S. (1989) Sentencing Reform Act constitutional b/c although Congress CANT generally delegate its legislative power to another Branch, the nondelegation doctrine does not prevent Congress from obtaining assistance from coordinate Branches Witte v. U.S. (1995) can consider uncharged conduct for enhanced sentencing and later prosecute for same conduct U.S. v. Watts (1997) can use previous conduct for which has been acquitted to enhance sentence Edwards v. U.S. (1998) fed. judges can sentence someone convicted of taking part in a drug conspiracy based on a finding that two illegal drugs were involved, even if the jury might have convicted based on one drug regardless of jurys actual or assumed belief about conspiracy TC required to determine whether controlled substances at issue and how much consisted of cocaine, crack, or both Almendarez-Torrez v. U.S. (1998) factors in Fed. Sentencing Guidelines as a basis for increasing sentence (esp. prior convictions) element of a new crime Jones v. U.S. (1999) Any Fact (Except Prior Conviction) that Max Penalty Must be Indicted, Submitted to Jury, and Proved BRD DP and 6th Amnd require any fact (except prior conviction) that max penalty to be o indicted o submitted to jury o proved BRD Apprendi v. NJ (2000) Entitled to Pre-Trial Notice, Jury Determination BRD of ALL Elements of Crime jury convicted possessing gun (stat. max. 10y) judge determined hate crime (max. 20y) sentenced to 12y entitled to jury determination that he is guilty of every element of crime with which he is charged, beyond reasonable doubt

o jury has to find hate crime enhancement, NOT judicial fact-finding

o question does the required finding punishment beyond that authorized by jurys guilty verdict? Ring v. AZ (2002) aggravating circs. = elements of crime must be found BRD by jury unconstitutional when judge imposes a sentence stat. max w/o challenged fact finding not submitted to jury Harris v. U.S. (2002) McMillan Re-Affirmed Apprendi: max. sentence = element McMillan: mandatory minimum (but not beyond max) element

together: facts setting up outer limits of sentence and the judicial power to impose it are elements; w/i sentencing range political system may channel judicial discretion
Blakely v. WA (2004) CANT Sentence Stat. Max Based on Disputed Fact Not Submitted to Jury plea agreement 2ndd kidnapping max 10y St. sentencing guideline = 49-53m unless substantial and compelling reason justifying exceptional sentence victim testimony judge sentences 90m invalid sentence when sentenced to stat. max b/c of a disputed fact founders would require to prove that fact through jury o whether judges authority to impose an enhanced sentence depends on a specified fact (Apprendi), one of several specified facts (Ring) or any aggravating fact (here) jurys verdict alone doesnt authorize that sentence judge only acquires authority upon finding some additional fact

o jury isnt in sufficient control as founders intended if they only make preliminary determinations of some criminal behavior and judge decides rest
U.S. v. Booker (2005) FSA Incompatible w/ 6th Amnd. Requirements Severed and Excised 2 consolidated drug cases: o #1 Guideline sentence of 210-260m @ sentencing judge finds by PoE

possessed addl drugs increasing sentence to 360m-life received 360m

o #2 Guideline sentence of 78m @ sentencing judge finds by PoE actually

drug ring leader increasing max sentence to 16 years sentenced 78m appeal
6th Amnd requirement that any fact except prior conviction needed to support a sentence exceeding max authorized by facts in guilty plea or jury verdict must be admitted by or proved to jury BRD incompatible w/ Federal Sentencing Act,

which called for promulgation of federal sentencing guidelines and made such guidelines mandatory
o guidelines same as Blakely both mandatory o sentencing range judge power jury power judge decides upper limits of sentencing based on facts not required to be brought to jury or proved by more than preponderance provisions that made guidelines mandatory and set standard of review severed and excised

o Congress would have preferred severing rather than total invalidation o appellate standard is reasonableness