Law School Legal Outline Notes for Advanced Criminal Procedure

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					Textbook: Marc L. Miller & Ronald F. Wright, CRIMINAL PROCEDURES: PROSECUTION AND ADJUDICATION (Aspen 1999) Marc L. Miller & Ronald F. Wright, SUPPLEMENT TO CRIMINAL PROCEDURES: PROSECUTION AND ADJUDICATION (Aspen 1999)

PART I: EVALUATING CHARGES: DEFENSE COUNSEL: Summary: 1. 6A: a. Right to appointed counsel for indigents – critical stage. b. Right to self-representation – to activate, D must waive right to assistance of counsel. c. Right to counsel of choice – just lip service but court has to point to something. d. Right to effective assistance: 1) Incompetence (deficient performance + prejudice) 2) Conflict of Interest (actual conflict + negative impact on counsel) 3) Government Impediment 2. Court‘s Duties: a. Appoint counsel if required. b. Ensure waiver if D wants self-representation. c. Look for danger signals of conflict of interest. d. How to work out systems of appointment. A. When Will Counsel Be Provided: 1. Summary: a. There is a constitutional right to appointed counsel for any D charged with a felony and for any D charged with a misdemeanor that results in actual imprisonment, even if less than 6 months. 1) Indigent D + Capital offense 2) Indigent D + Felony offense 3) Indigent D + Misdemeanor offense + no counsel at trial + actual imprisonment b. Also attaches to non-trial proceedings at CRITICAL STAGE c. Two Constitutional Grounds for Right to Counsel: 1) 6A: trial without counsel violates constitutional right to counsel. 2) 14A: trial without counsel violates fundamental fairness. d. Impact of Violation of Right to Counsel: 1) In trial context, AUTOMATIVE REVERSAL OF CONVICTION even without showing of specific unfairness. 2) In nontrial proceedings, HARMLESS ERROR rule applies. Historical Background of the Federal Rule: a. b. 6A: ―In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense [sic].‖ Powell v. Alabama (US 1932): 1) Facts: Indigent Ds charged with capital offense, denied effective appointment of counsel and opportunity to consult with counsel casually appointed. D brought challenged under 14A Process [―[N]or shall any state deprive any person of life, liberty,

2.

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2) c.

or property, without due process of law . . . .‖] arguing that the conviction that results is lacking in fundamental fairness because denied appointed counsel. Rule: indigent Ds have right to appointed counsel in CAPITAL cases.

Johnson v. Zerbst (US 1938) (Justice Black): 1) Facts: Indigent D charged with federal felony, no appointed counsel and convicted. D brought 6A challenge. 2) Rule: indigent Ds have right to appointed counsel in FEDERAL FELONY cases. Betts v. Brady (US 1942) (Justice Roberts): 1) 2) Facts: Indigent Betts charged with state felony, denied counsel, convicted and sentence to 8 years imprisonment. D brought 6A challenge but state argued that 6A was not incorporated by 14A and, therefore, is not applicable to the states. Rule: under 14A, special circumstances must exist in case to allow counsel for trial indigent Ds do NOT have right to appointed counsel in STATE FELONY cases.

d.

e.

Gideon v. Wainwright (US 1963) (Justice Black) (overruled Betts): 1) Facts: Indigent Gideon charged with state felony, denied counsel by FL law, Gideon proceeded pro se and found guilty. D brought 6A challenge. 2) Rule: courts must appoint counsel to indigent Ds in ALL FELONY cases because right to counsel incorporated by 14A Due Process Clause and is applicable to the states. 3) Principles a) Right to counsel is fundamental and poor person haled into court without counsel cannot be assured a fair trial unless counsel is provided for him. b) System is adversarial and cannot work well without counsel. c) Procedural rules are built into adversarial system and protections cannot be enforced without counsel. Argersinger v. Hamlin (US 1972) (Justice Douglas): 1) Facts: Indigent Argersinger charged with state petty misdemeanor, punishable by jail time up to 6 months, $1000 fine, or both, denied counsel by FL law, Argersinger proceeded pro se and found guilty. D brought 6A challenge. 2) Rule: right to counsel exists for ANY offense if ACTUAL IMPRISONMENT, however short, IS ULTIMATELY IMPOSED. 3) Limitation: rule only applies after the fact and only to defendants who receive imprisonment (loss of liberty) and were un-represented at trial. Scott v. Illinois (US 1979) (Justice Rehnquist): 1) Facts: Indigent Scott charged with state non-petty misdemeanor, punishable by $500 fine, 1 year in jail, or both, not provided counsel at trial, convicted and fined $50 at bench trial. D brought 6A challenge. 2) Rule: a) No constitutional right to counsel exists in misdemeanor case in which imprisonment was MERELY POSSIBLE BUT NOT RECIVED. b) Right to counsel exists in criminal prosecutions if ACTUAL IMPRISONMENT, however short, IS ULTIMATELY IMPOSED (affirmed Argersinger).

f.

g.

3.

Arguable Issues Under 6A Right to Counsel: a. Appointed counsel. b. Self-representation. c. Determining indigence. d. Counsel of choice: 1) Attorneys must be member of the bar to represent clients 2) D cannot insist on counsel he cannot afford or an counsel who rejects taking him as a client.

2

e. 4.

D cannot insist on counsel who has an ongoing relationship with opposing party, even if opposing party is the government. Ineffective assistance of counsel.

3)

Federal & State (???) Rule Regarding Point in the Proceedings that Right Attaches: a. When Does Right to Appointed Counsel Attach in Trial Proceedings: 4) Indigent D + Capital offense 5) Indigent D + Felony offense 6) Indigent D + Misdemeanor offense + no counsel at trial + actual imprisonment Time Line of Offenses 6 months Petty Misdemeanor b. 1 year Non-petty Misdemeanor Felony Death capital

When Does Right to Appointed Counsel Attach in NON-TRIAL Proceedings: 1) Federal Rule: once adversarial proceedings have begun (and even before in some cases), D is entitled to counsel at ANY CRITICAL STAGE OF THE PROCEEDING (anytime when the absence of counsel might derogate from his right to a fair trial) [see Gilbert v. CA (US 1967)]. Examples at Pre-Trial Proceedings: the constitutional right to counsel arises upon the initiation of an adversary criminal proceeding [see Kirby v. Illinois (US 1972)]. a) Post-adversary proceeding lineup. b) Custodial interrogation (under 5A – this is way to protect D while maintaining efficiency of federal system). c) Psychiatric examinations: questionable – 20 states have said there is no right to counsel because it is not a critical stage (but a neutral fact-finding stage). (1) Reasons why it might be helpful to have counsel present at this stage. (a) Help prepare for trial. (b) Prevent D confusion (Ds often think psychiatrist on is their side). (c) Prevent inappropriate/unfair behavior by psychiatrist. d) Pretrial arraignments. e) Preliminary hearing. f) Sobriety test: unknown federal rule. g) D is NOT entitled to counsel at grand jury proceeding. Examples at Post-Conviction Proceedings: a) All sentencing hearings. b) At the FIRST automatic appeal; D NOT entitled to counsel at discretionary appeals. c) D NOT entitled to counsel at probation or parole revocation proceedings. State Approach: right often attaches earlier. a) Right usually attaches as soon as D is formally charged. b) Sobriety test: 10 states have granted person arrested on DUI charges to right to counsel before submit to sobriety test but there is time limit on this right [see Friedman v. Commissioner (Minn. 1991)] c) Statutory right: when there is a statutory right to counsel, most states hold that once the statutory right to counsel attaches, it applies to every stage of the criminal proceedings, not just the critical stages.

2)

3)

4)

5.

??? Actual Imprisonment for Later Crimes - Right to Counsel Attaches if Imprisonment is Imposed at the Time of Trial or at ANY OTHER LATER TIME.

3

a.

b. c.

General Rule But Now in Question: An un-counseled conviction resulting in a fine MAY NOT be used, under an enhancement statute, to increase D‘s imprisonment upon a subsequent conviction [see Baldasar v. IL (US 1980)]. 1) Hypothetical: D convicted of DUI, no counsel, no incarceration, seven years later convicted of drug charge, receives higher sentence because of prior DUI conviction. D would argue that extra jail time reflects actual incarceration for DUI conviction and thus violates 6A because un-counseled DUI conviction used as aggravating circumstance to elevate jail time for drug conviction. Ds Argument: rely on Baldasar. Government’s Argument: rely on Nichols v. U.S. (US 1994) (overruled Baldasar) because D‘s sentence for DUI was valid at time and drug conviction aggravated by DUI conviction does not mean D receiving time for un-counseled conviction.

6.

Determination of Indigence: a. Factors usually considered include: 1) Offense seriousness. 2) Amount of bail. 3) D‘s assets and debts. 4) D‘s employment status. b. Do not need to prove total destitution. Assistance Other than Counsel: a. Right to Expert Witnesses: 1) Usually not. 2) But many states say judge has discretion to provide assistance other than counsel, such as medical experts, etc. 3) Most courts have held that state constitutions require the appointment of a nonpsychiatrist experts to indigent Ds where they make a particularized showing of the need for assistance. b. Right to Psychiatrist: 1) Usually not. 2) But in insanity defense, court usually allow right to expert psychiatrist. c. Due process may even require such assistance [see Ake v. OK (US 1985)]. Different State Rules: a. Many states have taken a more expansive approach to providing counsel in misdemeanor cases beyond actual imprisonment requirement [see RI, FL and VT examples]. b. Time when right to counsel attaches is sooner – see above.

7.

8.

B. Selection and Rejection of Counsel: Summary: a. D has constitutional right to self-representation (to proceed pro se). b. Standby Counsel: D has NO constitutional right to standby counsel - Court can appoint standby counsel but D must retain actual and perceived control of case. c. Waiver Requirements: 6A preserved if D competently, knowingly, intelligently and voluntarily waives right to counsel. 1) Competent: understands proceedings and ability to consult with counsel and assist with defense 2) Knowing and intelligent: understands the significance and consequences of particular decision 3) Voluntary: decision is not coerced 1. Generally: a. Judges do not like this right b/c greater possibility of reversal on appeal. b. Pro se trials are usually unfair, very messy but Court will uphold if there was valid waiver.

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c.

Reasons D would Want to Argue Pro Se: 1) Distrust of system. 2) Cost. 3) Disagreement with counsel. 4) Advantages to self-representation – a) No oath b) No subject to cross examination c) Establish relationship with jury d) Some non-legal arguments work best this way e) Suspension of some procedural rules

2.

Waiver: a. b. Rule: 6A right to counsel includes right to waive that right and thus, the right to selfrepresentation [see Faretta v. CA (US 1975)]. Requirements for Effective Waiver of Right to Counsel: 1) No simple way to assure waiver was knowing and voluntary. 2) Judge must inform D of dangers of pro se (make sure D is aware of what he is giving up and aware of significance and consequence of the proceeding) or if record indicates D aware of dangers. a) Most judges prefer having an express waiver hearing. 3) D must be competent to waive right to counsel. 4) Waiver must be knowing and voluntary. a) ??? Higher than Miranda waiver requirements (based on 5A)? (1) Bigger risk to the process. (2) But there is a neutral party involved. Compare Waiver of Right to Jury Trial and Waiver or Right to Assistance of Counsel: 1) Right to Assistance of Counsel: a) D has constitutional right to assistance of counsel. b) D can waive right to assistance of counsel; if D waives right to assistance of counsel, court CANNOT IMPOSE counsel. c) D has constitutional right to proceed pro se (without counsel) 2) Right to Jury Trial: a) D has constitutional right to jury trial. b) D can waive right to jury trial; if D waives right to jury trial, court CAN IMPOSE jury. c) D has NO constitutional right to proceed without jury. Case law: 1) Johnson v. Zerbst (US 1938) (Justice Black): a) Facts: Indigent D charged with federal felony, no appointed counsel and convicted b) Rule: D can waive right to counsel provided (1) D knowingly and intelligently effects waiver, and (2) D is aware of the dangers and disadvantages of selfrepresentation. 2) Faretta v. California (US 1975) (Justice Stewart): a) Facts: Faretta requested to proceed pro se, judge questioned Faretta on decision and advised on consequences. Before trial judge re-questioned Faretta on knowledge of evidentiary rules and jury challenges which Faretta did not know and appointed counsel. b) Rule: (1) D has constitutional right to self-representation (2) D can knowingly and intelligently waive right to counsel despite lack of legal expertise. c) Reasoning: (1) 6A is written for and directed to the accused and not the counsel.

c.

d.

5

d) e)

f)

(2) 6A is a personal right of the D because D must face consequences if his defense fails. (3) 6A describes counsel as ―assistance‖ and, therefore, counsel is aid to willing defendant like the other defense tools guaranteed by the 6A. (4) Constitution guarantees D a defense and without D‘s consent to lawyer and have lawyer‘s decisions be binding decisions of trial strategy, defense presented is not D‘s defense and leads D to believe law contrives against him. Standard: whether D is competent to waive his right to counsel (not whether D has reasonable legal competence). Denial of Right to Self-Representation is not amenable to harmless error analysis because: (1) when exercised the right to self-representation usually increases likelihood of a trial outcome unfavorable to D. (2) right to self-representation is either respected or denied and government cannot argue that deprivation was harmless. Impact of Later Ineffective Assistance of Counsel Claims: pro se D cannot complain that the quality of his defense amounted to denial of effective assistance of counsel.

3.

Competence to Waive the Right to Counsel: a. Rule: D must be competent (have a rationale and factual understanding of the proceeding against him) to make a knowing and voluntary waiver [see Godinez v. Moran (US 1993)]. 1) D need not be found capable of representing himself. 2) Standard for competency to waive right to counsel is no higher than standard for competency to stand trial. Compare Competency Tests for Standing Trial and for Waiving Right to Counsel: 1) Competency to Stand Trial - Dusky two-party test: a) Whether D has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding. b) Whether D has a rational as well as functional understanding of the proceedings against him. 2) Competency to Waive Right to Counsel: a) Whether D understands the proceedings and has the ability to consult with counsel and assist with defense. b) Waiver must be knowing (D must actually understand the significance and consequences of a particular decision) and voluntary (D‘s decision cannot be coerced). Measuring competency: Judge is NOT to consider whether D will be a competent lawyer. Consequences: 1) If D Found Competent = no 6A violation. a) No violation provided there is valid waiver. b) D cannot complain of unfairness of trial on account of pro se defense. 2) If D Found Incompetent = 6A violation. a) Violation regardless if valid waiver. 3) Court‘s preference: prefers to find D competent to continue with case; finding D incompetent is undesirable because places case in limbo. Caselaw: 1) Godinez v. Moran (US 1993) (Justice Thomas): a) Facts: Moran pled not guilty, found competent to stand trial, dismissed counsels and pled not guilty, found understood nature of charges, able to assist with defense, made knowing and intelligent waiver of assistance of counsel, sentenced to death.

b.

c. d.

e.

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b) 4.

Rule: standard for competency to waive right to counsel is no higher than standard for competency to stand trial.

Standby Counsel: a. Rules: 1) Court can appoint standby counsel without violating constitutional right to selfrepresentation. 2) D cannot insist on standby counsel. 3) D must retain ACTUAL and PERCEIVED CONTROL over the case he chooses to present to the jury. a) Unsolicited participation by standby counsel will NOT violate D‘s 6A right to present his own defense as long as actual and perceived control requirements are met. 4) Three exceptions to idea that standby counsel will make most of the tactical decisions – standby counsel cannot advise on: a) Whether to plead guilty or not guilty. b) Whether to testify. c) Whether trial by court or jury. 5) No partial representation allowed. Rationale: to avoid difficulties with regard to trial complexities – standby counsel‘s purpose is to be an explanatory resource on procedural rules and to be sounding board for D‘s legal theories and court hopes that standby counsel will be asked to take over case. Caselaw 1) State v. Spencer (Iowa 1994) 2) McKaskle v. Wiggins (1984) (Justice O‘Connor): a) Facts: Wiggins permitted to proceed pro se, court appointed two standby counsel, and Wiggins disagreed with standby counsel‘s tactical decisions on the record. b) Rule: (1) Court can appoint standby counsel without violating constitutional right to self-representation. (2) D cannot insist on standby counsel. (3) D must retain actual and perceived control over the case. c) Reasoning: (1) Pro se defense: (a) Objectives: i. affirm dignity and autonomy of accused ii. allow presentation of what may, at least occasionally, be the accused‘s best possible defense (b) Pro se D must have ability to . . . i. control organization and content of own defense ii. make motions iii. argue points of law iv. participate in voir dire v. question witnesses vi. address court and jury at appropriate points in trial (2) Standby Counsel: (a) Purpose: inform pro se D of court procedures and rules of evidence (b) Effect i. Protects adversarial nature of trial by ensuring impartiality of judge by removing judge‘s need to inform D of legal procedures. ii. Attorney-client privilege creates confidentiality which cannot be respected if D relies on judge for legal guidance. iii. If D is no longer competent or chooses to have counsel, standby counsel can take over.

b.

c.

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d)

(c) Actual and perceived control by D: i. Pro se D is entitled to preserve ACTUAL CONTROL over the case he chooses to present to jury.  Protection: disagreements between pro se D and standby counsel are addressed outside presence of jury.  Protection: disagreements between pro se D and standby counsel are resolved in favor of D when matter normally is left to court‘s discretion.  Protection: pro se D allowed to address court freely on his own behalf. ii. Participation by standby counsel without D‘s consent should not be allowed to destroy the jury‘s PERCEPTION that the D is representing himself. iii. Once pro se D permits participation by standby counsel before court or jury, subsequent participation is presumed to be with D‘s acquiescence until D expressly and unambiguously requests standby counsel be silenced. Scope of Representation ( PA Rule 1.2) (1) Attorney makes most of the tactical decisions – three exceptions: (a) Specific decision of plea. (b) Whether to testify. (c) Whether trial by court or jury. (2) Ethically counsel must counsel D on three issues but must accept D‘s decision. (3) ??? Pro se D must make all decisions (tactical and three decisions).

5.

Replacement of Counsel: a. Trial judge has discretion to grant D‘s request to replace counsel. b. Shows dark side of pro se because court usually responds by saying he can argue pro se or stick with that counsel. Law Students as Counsel: usually allowed.

6.

C. Adequacy of Counsel or Ineffective Assistance of Counsel: Summary: a. Types: 1) Incompetence of Counsel [Strickland]. 2) Government Impediment: 3) Conflict of Interest: 4) Deprivation of Counsel: b. Court’s Role: trial court must provide minimum constitutional guarantees 1) Appoint counsel if necessary. 2) Look out for incompetence (see if counsel is doing a good job). 3) Inquire about conflict of interest ONLY IF timely motion OR conflict known or should have been known by the court. 4) Evaluate properness of waivers. 1. Generally: a. Constitution guarantees effective assistance of counsel. b. Expectations/Standards of Attorneys = duty of zealous advocacy owed to D regardless of guilt with duty to not mislead the court. c. Analysis: 1) Categorize the case: ineffective assistance of counsel, conflict of interest or government impediment? 2) Does prejudice become an issue?

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3) 2.

Does harmless error analysis apply?

Incompetence of Counsel: a. Rule – counsel violates the right to counsel when he or she fails to render adequate legal assistance [Strickland v. Washington (US 1984)]. 1) D must show: a) Counsel was incompetent (deficient performance); AND b) Counsel‘s deficient performance prejudiced the D. 2) Burden on D for both prongs. ??? Impact = reversal? Measuring and Presuming Deficiency/Incompetence Prong: 1) Standard: objective reasonableness. a) Look to professional norms: D must show that counsel‘s performance falls outside reasonable range of professionally competent assistance. (1) There is a presumption that counsel‘s conduct falls within reasonable range and constitutes sound trial strategy. b) Look to specific facts of the case. c) Highly Deferential to D counsel: d) D‘s Counsel‘s STRAGIC CHOICES are usually unreviewable – not grounds for incompetence. e) Old standard: so bad that lead to trial of farce. Constitutional Minimums: ??? (are these constitutional mins?) Strickland List of Basic Duties a) Examples: (1) loyalty (2) avoid conflict of interests (3) advocate the D‘s cause (4) consult with D on important decisions and keep D informed of importance developments in course of prosecution (5) bring to bear such skill and knowledge as will render the trial a reliable adversarial testing process (6) make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary b) ??? Breach of ethical requirements is not constitutional violation: D counsel can breach code of ethics but still be competent (serving client within a reasonable range). c) NOT a checklist: Court refuses to tie constitutional rules to professional standards because this falls within the domain of the state. d) Why not give more detailed guidance: (1) Floodgate concerns. (2) Distract counsel. (3) Constitutional rules are NOT good vehicles for listing detailed behavior (see problems with Miranda). (4) Interfere with counsel-client privilege.

b. c.

2) 3)

d.

Measuring and Presuming Prejudice Prong: 1) Standard: but for D counsel‘s behavior, there is reasonable probability that result would be different. a) Same as test for materiality of exculpatory information not disclosed to D by the prosecution.

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b) 2) 3)

Note: it is important to understand what D must specifically show under this prong on the facts of each case (is it the plea bargain phase, the guilt phase or the sentencing phase?) Presumptions: in certain 6A contexts, prejudice is presumed BUT NOT HERE. Compare to harmless error doctrine: a) Both aimed at avoiding pointless reversals. b) Different Burdens: burden is on government in harmless error claims but Strickland shifts burden to D to prove harm/prejudice. (1) Balance - who should risk of incompetence fall on - balancing allowing some improper convictions to stand with allowing some proper convictions to be reversed. (2) Arguments For Putting Burden on D: (a) Prosecution would have to check up on D counsel to avoid reversal. (b) D has better access to info showing incompetence and prejudice. (3) Arguments For and Against Burden on D: (a) There is a distinction b/w appointed and retained counsel BUT court has reject this. (b) D is helping prosecution prove its case b/c relaxed reasonable doubt standard – D has to prove his innocent. (c) One-sided record indicating D’s guilt: reviewing court will be looking at a record that was established by an allegedly ineffective counsel. (4) Impact: this is VERY HIGH BARRIER for D.

e.

Impact of Strickland: 1) Focus is on prejudice prong b/c easier on court-counsel relationship (court does not have to disparage counsel) – this leads critics to say that there is a lack of discussion as to proper competence levels. 2) Strickland sets VERY HIGH STANDARD for D. Pervasiveness of Ineffective Counsel Claims: one of the most common legal challenges to criminal conviction. Ineffective Assistance in Capital Cases: should there be a higher standard? Distinguishing Effective Assistance from Impaired (sleeping, drunk, drugged) Attorneys: most courts say such impairments do not deprive D of effective assistance w/out specific proof of the standard elements of ineffective representation and prejudice. Ineffective Assistance of Counsel & Collateral Attack - two procedural mechanisms for review of constitutional claims: 1) Seek direct appeal: a) Advantage: plenary review: can raise any issue as long as not waived at trial (no restriction). b) Disadvantage: time period is fairly short 2) Collateral attack (e.g. habeas corpus review) a) Parties involved: appellant (incarcerated D) and respondent (warden of prison or other state official where D is incarcerated). b) Petition: (1) Claim: incarceration is deprivation of liberty because conviction based on a constitutional violation. (2) Filed: federal district court, probably where prison is located. c) Advantage: time restraints are not as limited, longer time than with direct appeal. d) Disadvantages: (1) Must argue federal constitutional error. (2) Congress has placed restrictions on federal habeas corpus review – (a) Must seek all relief available through state claim before seeking habeas corpus review.

f. g. h.

i.

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3)

(b) Default: if D did not pursue certain issues in state process, then defaults opportunity to raise issues on habeas corpus review under certain circumstances Collateral attack & ineffective assistance of counsel: a) No limitation on habeas corpus review for ineffective assistance of counsel claims b/c not until after conviction does D learn about ineffectiveness of counsel from another lawyer or another prisoner b) D still bears burden of showing ineffectiveness of counsel.

j.

Standards for Assessing Professional Norms: 1) ABA Standards focus on performance. 2) Ohio‘s Standards focus on experience.

3.

Government Impediment a. Rule: if the government interfered with the D counsel‘s ability to do his job (either through statute, court order or rule), prejudiced is presumed. 1) Standard: whether the government or court interferes in certain ways with the ability of counsel to make independent decisions about how to conduct the defense. 2) Burden on D ??? Impact Examples: 1) rule disallowing defense a closing argument 2) rule requiring D to testify before other witnesses 3) rule precluding direct examination of D Effects: 1) Cuts defense counsel from significant tactical decisions. 2) Severely restricts what counsel can do. 3) Could have serious impact on D‘s ability to put forth effective defense.

b. c.

d.

4.

Conflict of Interest: a. Rule: 1) D must show: a) Actual conflict (more than just possibility of conflict), AND b) Adverse effect on counsel‘s performance (judged by the circumstances of the case) 2) Prosecution can rebut by demonstrate D validly waived rights affected by multiple representation (but cannot use harmless error). 3) Note: very tough for courts to determine actual conflict and adverse effect – look to counsel‘s testimony like competence prong). 4) Burden: a) Depends on the Party Raising the Issue: (1) D: meet test and shift burden to government to show valid waiver. (2) Government: meet test and shift burden to D to show valid waiver. (a) Government could manufacture a conflict of interest. i. Trial judge must differentiate credible and fanciful conflict arguments by government. ii. Prosecution wants to maintain credibility before court which prosecution may come before at later time. (3) Court: D meet test and shift burden to government to show valid waiver. b) Effect of process to meet evidentiary burden:

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(1) Primary effect is on D counsel: D must reconstruct case in order to view lawyer‘s behavior to see if performance was adversely affected by conflict which means D counsel may have to testify. (2) Other parties affected although primary effect on D counsel: (3) Judge: may be influenced by conflict. (4) Prosecution: less likely to make plea offers. (5) D: may feel limited in defense approaches with lawyer‘s option to continue multiple representation. b. ??? Impact = reversal? 1) Prejudice is presumed b/c of the great potential for errors. 2) NO harmless error argument. Who can raise conflict of interest and when? 1) Court: has constitutional duty to inquire if either timely motion has been made by one of the parties, OR court has reason to know or should have known a conflict existed. 2) D/defense: before trial, during trial, and on appeal 3) Prosecution: before trial and during trial. Examples: 1) Multiple Representation. 2) Former Clients. 3) Victim Contact. Problems with multiple representation: 1) Ethical guidelines vehemently oppose (Model Code and the Model Rules of Professional Conduct). a) Economics/money may cloud counsel‘s decisions. b) D limited to counsel‘s advice, which conflict can affect. c) D does not expect to be treated badly. 2) Plea bargaining power diminished if represent multiple defendants. 3) Adverse Effect on Tactical Decisions (e.g., comparative culpability argument not possible if represent multiple defendants). 4) Restrictions on cross-examination because of confidentiality issues and rules of professional responsibility if client #1 cooperates with government and testifies against client #2. Ways to Avoid Conflict: 1) Decline to represent multiple Ds. 2) Accept multiple Ds only when 3) advised Ds of problems with multiple representation and rights affected 4) obtained waiver 5) put waiver on the record 6) State Per Se rules: many states say it is per se a conflict of interest to represent multiple Ds. 7) Federal Rule of Crim Pro 44: allows for waiver on record by D. a) Rule: court required to inquire into joint representation to inform all parties involved of possible conflict. b) Rationale: (1) Protects government from retrying case by . . . (a) Getting waiver on the record: ensures that conviction upheld on appeal although conflict or potential conflict still exists. (b) Disallowing waiver: ensures no conflict and conviction upheld on appeal although D validly waives rights. (2) Grants substantial discretion to trial judge: (a) Does not have to submit to D‘s preference to waive and thereby proceed with risk of unfairness. (b) Protects against government falsifying circumstances to show a conflict.

c.

d.

e.

f.

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(c) Judge decides credible from fanciful arguments. (d) Prosecution less likely to falsify if have to come before trial judge at later time. 5. Hypothetical: Mr. and Mrs. Larks charged as co-Ds and shared an counsel. Judge conducted Rule 44 colloquy and both Ds waived relevant rights. Attorney negotiated deal for Larks and Mrs. Larks pled guilty and received period of probation in exchange for lenient treatment of husband. Two years later, government revoked Mrs. Larks‘ probation for several infractions. Mrs. Larks argues plea is invalid a. Mrs. Larks’ Argument – Conflict of Interest: at time of pleas, Mrs. Larks was injured by conflicting representation, must argue conflict existed before Mrs. Larks effectuated waiver at Rule 44 colloquy because was given advise from lawyer willing to take on conflict. b. Court’s Response: hold Mrs. Larks to her waiver.

D. Systems for Providing Counsel: Summary: a. Three Systems: 1) PD 2) Assigned 3) Contract 1. Types of Systems: a. Public Defender Program: 1) Funding: a) State: an individual is charged with developing and maintaining a system of representation for each county of the state. (1) Advantages: allows for consistency throughout state b) Local: public defenders operate autonomously and do not have a central administrator (1) Disadvantages: Leads to wide differences among the various counties 2) Types: usually full time. 3) Biggest Challenges: a) Overloaded. b) Costs. Assigned Counsel: 1) Appointed by courts - ad hoc - private attorneys are appointed by an individual judge on a case by case basis. 2) Problems with the judge appointing counsel: a) Competence (i.e. bankruptcy attorney appointed to death penalty case). b) Independence - problems with control, keeping judges happy. c) Competition between attorneys for more lucrative appointments. d) Bias - i.e. electoral or friends. e) Hard on lawyers so do a bad job. 3) Appointed by administrators who oversee the appointment of counsel and to develop a set of standards and guidelines. 4) Panels of lawyers. 5) Biggest Challenges: a) Due process violation of property rights. Contract Counsel: 1) Definition: Agreement with private attorneys for a specified dollar amount for specified time period. 2) Bidding for low price (or combination of price and skill).

b.

c.

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3) 4) 5) 2.

Weakness: the faster the cases are disposed of the more $ attorney makes. **Of all the actors who can make it morally ethical, defense lawyers makes either of the systems fine, because they are under an ethical obligation, even if not under a formal obligation, with respect to hours. Biggest Challenge: Pricing method raises questions.

Judging systems and representations - subjective determination using ABA rules, professional norms, ―objective‖ standard of reasonableness. a. State v. Peart (La. 1993) - presume ineffective assistance for one section after looking at entire system. 1) Court was torn between attempting to enforce effective assistance on the entire system and the power to look at individual cases. 2) Is it more intrusive for a court to threaten the legislature to solve the problem ―or else‖ or should a court simply impose its own limits when the legislature fails to do so? b. State v. Lynch (Okl. 1991) held the statute appointing counsel was unconstitutional in its application b/c of property rights issues. 1) Statute did not afford a post appointment opportunity to show cause why they should not be forced to accept the appointment. 2) Statute provides an arbitrary and unreasonable rate of compensation which may result in a taking of private property. 3) The judges in the opinion were arguing over forum in which to address these problems. Flat Fee Problem 1-4 (p82): a. Theoretically, regardless of fee system, there is an ethical obligation to serve the defendant and the system. Thus, any system should be OK. b. There are tensions between lump sum systems where defendants are encouraged to plead out cases vs. fee for each service system where attorneys keep clients in jail while they drag their feet. Compare to Neighborhood Defender System. Branches That Provide Defense Counsel a. Executive - D.A.: 1) Politically accountable to the people (political pressure) 2) Separation of powers argument - backlash against the defendant by the judiciary 3) Inconsistent enforcement - prosecuting and defending at the same time. b. Legislative - system by statute: 1) Make direct claim to legislature for inadequate defense. 2) Tension - providing defense counsel may contradict legislative goals. 3) Can create, limit, and eliminate defenses and shape the law 4) Could increase funding and remove all defenses! c. Judiciary: 1) independent 2) problems - funding 3) no conflict - not defending and prosecuting at the same time d. Administrative - place it outside any of the 3 branches: 1) Advantages (independence, no pressures or conflicts, consistent enforcement). 2) Disadvantages (funding problems, problems with administration (i.e. too much bureaucracy)). Standard to Assess the Systems: a. Pleas - review panels, break them into sets b. Survey c. Public view including the defendant (survey) d. Set of standards like ABA (generally were witnesses interviewed, etc.) e. Resources - efficient? steady? f. Acquittals

3.

4. 5.

6.

14

g. h. i. j. k.

Equality - the most objective standard - match defendants by those who can pay and those can‘t pay Caseloads Salaries Support services State v. Lynch - adopted guidelines for trial courts to apply in future assignments of counsel

PRETRIAL RELEASE AND DETENTION: A. Pretrial Release: Summary: a. No right to bail. b. Bail cannot be excessive. c. Many considerations in determining bail. d. Variety of approaches as to when bail is determined. 1. History: a. 8A: ―Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.‖ 1) This is NOT an absolute constitutional right to bail because bail not allowed for capital offense. b. Vera Project: 1) Intro – the need for reform – why bail is such a big issue: a) People who don't post bail are more likely to get convictions and harsh sentences at trial. b) Disproportionate Effect on Poor D: money bonds harsh to poor Ds and if cannot afford cash bail could be in jail for over a year depending on the court. c) Difficult for D to assist in his defense b/c hard to consult with counsel, locate witnesses or gather evidence. d) Lose touch with friends. e) Income loss. f) Family problems. g) Social stigmatization leads to loss of self respect. h) Seems counter to presumption of innocence. i) Costly for society to pay to keep D in jail. j) Jails are overcrowded and notoriously bad for D‘s health. k) Jail puts pressure on D‘s to plead guilty even if not guilty. 2) Vera Institute: a) Developed a bail fund, but realized that the system could not depend on private philanthropy. b) Encouraged judges to release Ds on their own recognizance. (1) Decision to release would be based on verified information about the accused. (2) Community roots. (3) Limited to D 's accused of certain offenses c) Developed project to see how these Ds faired in the system. 3) Project Results: Judges did base their actions on the availability of reliable information about the Ds. Federal Bail Reform Act of 1966: 1) Stipulated that persons should not be detained needlessly in the federal courts to face trial, to testify, or to await an appeal. a) Release should be granted in non-capital cases where there is reasonable assurance the individual will reappear when required.

c.

15

b) c) d) 2)

Courts should make use of a variety of release options, depending on the circumstances Individual Focused: information should be developed about the individual on which intelligent selection of alternatives could be based. Problems with tradition bail system

3) 2. 3.

Factors to be used in reaching release decision: a) the nature of the offense charged b) the weight of the evidence against the accused c) the accused's family ties d) employment e) financial resources f) character g) mental health h) length of residence in the community i) record of convictions j) record of failure to appear at court appearances/flight from prosecution. Majority response to 1960's era bail reform: majority of jurisdictions increased the use of non-financial release techniques.

Purpose of Bail: a. Main purpose = assure presence of D at trial. Bail Setting Process and Considerations: a. What does D counsel need to know? Although many courts have standardized this process – D counsel should still investigate and verify this info. 1) Nature/gravity of offense (look for a paper complaint/charge). 2) Strength of prosecution‘s case (was client caught red-handed? Is this an old issues? watch out for overcharging) 3) D‘s criminal record (ask client, request rap sheet). 4) D‘s community ties (family, permanent resident, employment, church, school, property ownership 5) Resources available to D (property ownership). D Counsel Be Wary in Bond Setting : 1) It is early and D Counsel does not have a lot of info, thus cannot adequately assess the risks. 2) Watch out for parent (or third party)/D conflict of interest: there are ethical considerations in advising both parties. 3) Understand risk of having D testify at bond hearing (perjury, self-incrimination, inconsistency). 4) Do NOT make representations about D that you cannot verify. 5) Sometimes, it may be better to let D sit in jail than to risk false/inconsistent representations. Weighed by discretion of judge: no operative rules of evidence when arguing bail. ??? When Is or Should Bail Be Set ? 1) ??? Federal Rule: 2) State Rules: a) Up to court‘s discretion – usually bail set at time of initial appearance. b) Some state constitutions have a right to bail. c) D often argue for bail at time of charging but are usually rejected.

b.

c. d.

4.

What Constitutes Excessive Bail:

16

a. b. 5.

Excessive: if set higher than reasonably calculated to assure the presence of the accused at trial. Not excessive: bail set equals legitimate government goal.

Types of Bail: a. (Non-financial) ROR: release on D‘s promise (i.e. signature) that will appear in court and sometimes requires a co-signer. 1) *typical ROR factors: time living locally, job, family, church, $$ resources, record of convictions, severity of the crime, risk of flight, dangerousness 2) Reasons for trend to ROR: a) Saves government $ on costs of jails. b) Positive impact on D personally. c) Positive impact on processing of case. b. (Non-financial) Conditional ROR: 1) unsecured appearance bond: bail amount to be forfeited if D fails to appear 2) supervision by pretrial release program: D required to maintain contact with program through telephone calls or personal visits 3) drug monitoring or treatment. 4) house arrest. 5) surrender passport. c. Financial release: D‘s failure to appear results in forfeiture of bail security – disproportionate effect on poor Ds. 1) Bail Bondsmen - Surety: 10% of bail amount put up by bail bond company 2) Deposit: 10% of bail amount put up by D 3) Cash Bail: full bail amount in cash put up by D 4) Property Bond: full bail amount in property lien put up by D Denial of Bail: in capital and sex offender cases, there is no right to bail.

6.

B. Preventive Detention: Summary: a. Prevention Detention: courts may deny bail to Ds who are alleged to be dangerous to society. b. Federal: allow and use preventative detention. c. States: Majority of states do not allow preventive detention - most states allowing preventive detention limit it to serious felonies and repeat offenders. 1. Constitutionality of Preventative Detention: a. No Due Process violation. b. No 8A violation. c. See United States v. Salerno (1987) (Chief Justice Rehnquist): 1) Facts: D detained after hearing pursuant to Bail Reform Act and argued Act unconstitutional on face (not as applied because clear findings that D was danger to community). D challenged the Act under the 5A and the 8A. 2) Holding: a) 5A: no violation of due process (1) Bail Reform Act is regulatory, not a form of punishment. (2) Government‘s regulatory interest in community safety can outweigh individual‘s liberty interests. (3) Conditions must not be excessive in light of the perceived danger of the D. (4) Bail must be set at amount designed to ensure government‘s goal/interest and nothing more. b) 8A: no constitutional guarantee to bail; no absolute guarantee because no bail allowed for capital offenses. 3) Reasoning: a) Purpose of act is to protect community, not to punish.

17

4)

(1) Act is narrowly focused on target population of people who would injure/harm community. (2) Act never talks about punishing people. b) Congress is better able to digest studies that show cannot estimate dangerousness and Court will defer to legislative findings that studies are irrelevant. c) Does not require proof beyond reasonable doubt – civil commitment of person who is mentally ill is regulatory and does not require proof beyond reasonably doubt. Low Level of Protection for Ds: a) No constitutional guarantee to bail hearing and arraignment or preliminary hearing. b) Minimum constitutional guarantees under Bail Reform Act. (1) judicial hearing after arrest (recent cases say within 48 hours) (2) probable cause (3) representation at arraignment or preliminary hearing and bail hearing

2.

Purpose of Preventative Detention: a. Prevent flight + prevent harm to community (this is a new government interest). 1) New Government Interest: prevent against the commission of crimes b/w release and trial (social science does not support the governments interest in this case). 2) How does this conflict with individual interest in liberty and innocence presumed. Federal Process: a. Prosecution must make MOTION for preventative detention and must prove by clear and convincing evidence. b. Prosecution has REBUTTABLE PRESUMPTION of detention if: 1) D has prior conviction 2) D committed offense while on release pending trial 3) D committed offense within 5 years of conviction date or release from prison 4) There is probable cause to believe D committed drug offense for which a maximum term of 10 years or more is prescribed c. If detention is ordered, D is entitled to EXPEDITED REVIEW of the decision. d. PROMPT HEARING REQUIREMENT. Distinguished from Profiling: these Ds have pending charges supported by a determination of probable cause. State Approaches: a. NM Constitution b. Presumptions Based on Crime Charged (VA Code). c. Limits on the length of pre-trial detention allows – usually 60 to 90 days. Compensation for Wrongful Detention: Hypotheticals: see Tomika‘s outline.

3.

4. 5.

6. 7.

I.

CHARGING: Summary: 1. Screening Mechanisms: a. Police b. Prosecution c. Preliminary Hearing d. GJ 2. Prosecution has discretion whether or not to initiate prosecution.

18

3.

Legal Challenges to Prosecutorial Discretion: a. Selective prosecution: 1) D must show: discriminatory effect (similarly situated class treated differently) + discriminatory intent/motive (prosecutorial motive is improper). 2) Remedy: bar prosecution all together OR put D in same position as similarly situated others. b. Vindictiveness: 1) Showing: a) presumption –government must show no vindictiveness b) no presumption – D must show actual vindictiveness 2) Remedy: bar prosecution to prevent penalty

Generally: 1. soon after arrest, suspects learn why arrested, usually when police file charge form against arrestee 2. these charges are subject to change at many possible times 3. prosecutor will make decision whether or not to accept officer‘s charge 4. prosecutor will file the charge(s) he/she decides on at an initial appearance before a judicial officer 5. charges can also change at a later hearing (prelim exam, arraignment-time of D telling how D will plead to the charges 6. all this screening: police, prosecutors, but courts are not really involved—they only review when there is a minimal amount of evidence to support the charges, grand juries do this too 7. b/c of the importance of the prosecutor‘s choices at this stage in process, statutes and other constitutional rules become less prominent

A. Police Screening: 1. Generally: a. Should police officers make an independent judgment about whether to file charges for every crime which might be charged? When should police supervisors reject the charging of their officers? 1) Finding police screening of charges: a) clearance rates: the % of complaints made to police that are solved in some fashion. b) attrition rates: describes how initial complaints drop out of the criminal process, and why only a relatively small % of either complaints (or even the large category of criminal events) end with convictions. 2) Police screening has a big effect on the work of the prosecuting attorney: a) Police do lots of work away from the DA, and this puts the DA in a ‗reactive‘ position. b) Doesn‘t allow the DA widest discretion, b/c it does not afford the DA the initial charging function. Philly Police Investigation and Charging Procedure: a. Policy: use a Complaint Fact Sheet, then goes to DA Charging Unit b. Investigating Unit Procedure: lists duties of assigned investigator; his work must be approved by his supervisor; lists what to do when DA rejects the charges c. Lastly, Commanding Director of the Investigating Unit will review modified and rejected charges. Houston Police—on co-op b/w the police and DA: Before police charge, consult w/DA; officer must show lots of stuff. Procedures listed of what to do if the DA rejects the charges. Notes: a. There are VARYING LEVELS OF COOP b/w police and DA. b. Police and DA have differing perspectives and priorities.

2.

3. 4.

19

B. Prosecutorial Screening: 1. Types of Prosecutorial Discretion: a. Charges: 1) nature of the charge (i.e. three strikes statutes are discretionary) 2) who to charge 3) whether or not to prosecute crimes (i.e. lack of resources) 4) where to charge – juvenile court or adult? 5) what penalty to seek? b. Bail: whether or not to seek preventive detention c. Plea Bargaining: whether or not to negotiate d. Sentencing: 1) whether to seek low or high sentence (i.e. death penalty) 2) discretion limited by sentencing guidelines Influences on Decision to Prosecute: a. Inner Department Considerations: 1) Deterrence value. 2) Precedent value. 3) Department priorities. 4) Political considerations (although these are NOT supposed to be considered). b. ABA Standards: 1) No duty to prosecute all supportable cases (i.e. lack of resources). 2) Unprofessional to bring charges when (no probable cause, believe admissible evidence insufficient to support conviction). 3) Prosecution should not bring charges when has personal doubts about D‘s guilt. c. Defendant: 1) Health of D 2) Convictability. d. Victim – have to be ware of inappropriate victim motives: 1) Prosecute: numerous reasons (i.e. has axe to grind). 2) Not prosecute: sense of embarrassment; reliving awful experience; fear retribution by offender; publicity; costs of prosecution. e. Law Enforcement: 1) Prosecute: overstepped bounds and prosecution would prevent possible civil claim against them. 2) Not prosecute: lack of resources; view of case differs with prosecution f. Society: 1) Prosecute: protect society; advancing legal system 2) Not prosecute: lack of resources Courts will Rarely Override Prosecutor‘s Decision to Charge or Not to Charge - Why Judges Decline Involvement in Charging Decisions: a. Separation of powers. b. Judicial incompetence to make decisions about resource allocations. c. Overbroad provisions in crim codes require selection from among the possible charges. Declination Policies – 3 Types: a. Procedural policies (DA Discretion), review by senior DA). b. Written policies on when to decline to prosecute. c. Ad Hoc. Selection of Charges and System: a. Selection Among Charges:

2.

3.

4.

5.

20

1) 2)

Majority Rule: prosecutors may select among all available charges in deciding what charges to bring; challenges to prosecutor almost always fail. DOJ Principles of Federal Prosecution: go for the MOST SERIOUS OFFENSE that is likely to sustain a conviction. a) Also file other charges if: (1) They are necessary to ensure that the information or indictment (a) adequately reflects the nature and extent of the criminal conduct involved and (b) provides the basis for an appropriate sentence under all of the circumstances of the case; OR (2) Will significantly enhance the strength of the government‘s case against the D or a co-D. Minn Statutes: lists what the county attorney SHALL prosecute; says they shall adopt a written charging policy guideline. State v Tonya Caskey (Iowa 1995): a) Facts: felony neglect of a dependent person (drove DUI w/kids in the car); D claims she was charged under the wrong statute, she wants to be charged under "child endangerment" statute b/c it is only an aggravated misdemeanor, and b/c there was no serious injury to the children. b) Holding: court affirms; the plain meaning of a clear statute applies; DA had choice in what to charge, but no abuse of discretion here, esp b/c D‘s conduct demanded a felony conviction. FL‘s Approach a) FL Habitual Offender Statute: if you are habitual offender, then you can get a longer prison sentence – there are problems so court tells prosecutors to come up with guidelines. b) FL Prosecutor‘s Statement on Implement the Statute: (1) In favor of keeping the habit offender status. (2) HUGE list of criteria for deciding who is ‗habit violent felony offender‘ and who is ‗habit felony off‘. c) Impact: none really b/c guidelines are merely DISCRETIONARY – D can try to argue that prosecutor did not follow but judge will rarely enforce and even if judge does enforce, he will merely bump the charge down within the guidelines. Problem 3-1: Available Charges—drunk snowmobile guy: a) Facts: D charged with operating a motor vehicle while intoxicated - D claims other charge fits better. b) Holding: prosecution wins; huge deference to prosecutors when they have charges to choose from. National District Attorneys Association factor list: a) probability of conviction b) willingness of offender to cooperate with law enforcement c) possible improper motives of a victim or witness d) excessive cost of prosecution in relation to the seriousness of the offense e) recommendations of the involved law enforcement agency f) any mitigating circumstances Overcharging: do prosecutors do this in order to try to force a plea bargain? Or is just to reflect the gravity of the offense? What if they do this and there is not enough evidence to support a conviction? Strategic reasons? Prosecutor has a lot of Available Crimes to Select From: statutes often written very generally, some particular, but b/c of the general ones you often see a lot of

3) 4)

5)

6)

7)

8)

9)

21

overlapping. 10) Statutory limits on multiple convictions: limit the # of convictions that can result from overlapping charges b. Selection of System: 1) Juvenile (JV) vs Adult Court System: a) Rule: prosecutor again is key decision maker as to which system a young D will enter. (1) Statutes in most states initially assign JVs to JV court, and then allow JV judge to waive jurisdiction after an investigation, hearing, statement of reasons Differences of 2 systems: (1) JV courts are civil, not criminal (2) JV emphasize rehab, not punishment (3) JV more informal (4) JV helps avoid adult court stigma (5) JV records sealed after 18th b-day Big Study: trend is to make it easier to prosecute JVs in adult criminal court (b/c rehab worthless, some JV crimes so serious, JV system not punitive enough for the public, want more accountability). 3 Mechanisms for Placing JV Offenders into Adult System: (1) Judicial Waiver: JV court waives jurisdiction and transfers. (a) Criteria: JV‘s age, current offense, criminal history, amenability to rehab (see p205 factors). (b) Presumptive Waiver: requires JVs automatically be waived to adult court unless they can prove they are suited to JV rehab. (2) Prosecutorial Discretion (‗direct file‘): (a) Pros decides which system to file in first. (b) Limits on discretion: JVs age, offense, criminal history. (c) Rarely found. (3) Statutory Exclusion: statutes that list criteria (age, certain offenses) that if met will keep JV out of JV system. Kristy Maddox v State (53): JV throws pop bottle at woman in car, harasses woman and passengers; D wants to transfer to JV court, but motion denied; mom testifies as to character, no priors; victim testifies. (1) Holding: trial courts decision to decline motion to transfer was proper. (2) Rule: (a) Decision to retain jurisdiction must be supported by clear and convincing evidence; denied motion to transfer will be received only if ruling is clearly erroneous. (b) Rule on violence and transfers: the use of violence in the commission of a serious offense is a factor sufficient in and of itself to retain jurisdiction of a juvenile‘s case, but the commission of a serious offense w/o the use of violence is not sufficient grounds to deny the transfer. (3) Dissent follows a different rule.

b)

c)

d)

e)

2)

State or Federal Court System: a) Problem 13-2: Federal Day: (1) No deterrence effect. (2) Potential for Discrimination (police can wait). (3) Randomness presents problems.

22

6.

Selective Prosecution: a. Rule: It is possible (at least in theory) for a court to overturn a prosecutor‘s charging decision when it is based on a constitutionally impermissible ground (such as race, religion or sex). 1) D must show: a) Prosecutor made different charging decisions for similarly situated suspects (discriminatory effect); AND b) Prosecutor intentionally made the decision on the basis of an arbitrary classification (discriminatory purpose). 2) Reality: very hard to get evidence of non-prosecution. Prosecutorial Vindictiveness: 1) Rule: prosecutorial discretion can never be influenced by vindictiveness - cannot punish D for exercising his constitutional rights [ see Blackledge v. Perry (1974) (Justice Stewart)]. 2) There are no presumption of vindictiveness: D must show actual vindictiveness [see United States v. Goodwin (1982) (Justice Stevens)] - difficult for D to show – need statement by prosecution indicating vindictiveness. 3) Pretrial: court reluctant to find an increase in charges constitutes vindictiveness. 4) Later in trial: court more willing to find.

b.

C. Grand Jury and Judicial Screening: Summary: a. Constitutional right to indictment by GJ in federal felony cases; some states require indictment by GJ for certain offenses (even though right to GJ not incorporated to states). b. No constitutional right to preliminary hearing (up to state‘s discretion). c. ??? If D convicted, errors in grand jury proceedings deemed harmless. d. Challenges to grand jury indictment: 1) Selection/composition of grand jury. 2) Form of indictment (facially invalid). e. ??? (did we learn this?) Challenges to grand jury subpoena for testimony and documents: 1) 4A: subpoena overbroad 2) 5A: failed to inform have 5A right and can invoke. 3) Evidentiary privileges 4) 1A violation – chills 1A rights. 1. Grand Jury (not adversarial): a. Functions: 1) Shield function: screening – protect D from improper charge. 2) Sword function: investigate Decision of Grand Jury: true bill or no bill. Lower Evidentiary Standard: Great Potential for Prosecutorial Misconduct in GJ b/c No Adversary: 1) Bring unauthorized persons into courtroom. 2) Expressing personal opinions and views. 3) Asking irrelevant and damaging questions to generate prejudice or intimidate witness. 4) Appearing as both attorney and witness in same proceeding. Effect of Grand Jury Indictments (significant negative impact): 1) basis for holding person for trial

b. c. d.

e.

23

2) 3) 4) f. g.

person may be arrested public charge: negative publicity person held on conditions of bail

Hearsay is Admissible at GJ – see Costello v. United States (US 1956) (Justice Black). Federal Approach: 1) ??? No federal constitutional requirement of P/C for GJ indictment. 2) Once prosecutor obtain indictment, D cannot insist on preliminary hearing. 3) Prosecutor has no obligation to present exculpatory evidence. 4) Judicial review – majority approach: any prosecutorial misconduct is harmless in the context of the entire proceedings. 5) Very hands off approach - few protections for D. State Variations: 1) GJ requirement from Bill of Rights not incorporated against states. 2) Half of states require GJ indictment for certain charges (usually felonies) – GJ as shield - D can waive GJ right. 3) Majority view: there is no constitutional right to preliminary hearing once prosecutor decides to seek GJ indictment. 4) NY Const: "no person shall be held to answer for a capital crime or otherwise infamous crime…unless on indictment of GJ"; note D can waive GJ indictment and be prosecuted on an information filed by DA; GJ shall have the power to inquire into willful misconduct by public officials. 5) Illinois code: pros by info or indict for felonies; if by information, prelim hearing must be held or waived first and PC must be found; all other prosecutions may be by indict, info, or complaint Challenges to GJ – both based on 5A and established in Costello v. United States (US 1956) (Justice Black): 1) Selection or Composition of GJ: argue GJ was not legally constituted or was biased (what goes in grand jury door). 2) Facial Challenge to the Form of the Indictment: argue there was defect in charging instrument (what comes out grand jury door). 3) See Costello v. United States (US 1956) (Justice Black) (―an indictment by a legally constituted and unbiased GJ, like an information (preliminary hearing accusation) drawn by the prosecutor, if valid on its face, is enough to call for trial on the charges on the merits‖). 4) Also see State v Eric Edmonson (Idaho 1987) ( holding that D must show prejudicial effect – which means the D would not have been indicted but for the misconduct burden on D to show minimal level of prejudice - mere violation of rules of evidence is not sufficient grounds for overturn indictment).

h.

i.

2.

Preliminary Hearing: a. Characteristics: 1) Definition: adversarial hearing at which a judicial officer hears evidence and determines probable cause. 2) Charge does not result from preliminary hearing - results from either a) indictment: charge by grand jury b) information: charge by prosecutor c) complaint: minor cases 3) Adversarial proceeding. 4) Federal and State Rules: a) Most jurisdictions provide preliminary hearings in rules of criminal procedure. b) Federal rules of criminal procedure define timing and format for hearings.

24

b.

Constitutional Requirements: 1) Minimum requirement: ex parte determination of probable cause by judicial officer based on a sworn presentation (must be made within 48 hours, D entitled to lawyer). 2) Preliminary Hearing is NOT Constitutionally Required: D can be held without ever receiving any pretrial opportunity for adversarial testing of probable cause Functions of Preliminary Hearing: 1) Screening mechanism. 2) Bond reconsideration: court may adjust bond in light of the facts elicited at preliminary hearing. 3) Discovery for D: discovery is often a goal of the defense, although not an accepted purpose of preliminary hearings. 4) Expose D to case: defense counsel can work better with a D who knows the evidence. 5) Record witness testimony: testimony given at preliminary hearing may be used to impeach witness OR establish the case if witness becomes unavailable. Benefit for D: Can preview prosecution‘s witnesses and evidence. Comparison: GJ Prosecutor (although 3 states deny prosecutor‘s presence) Grand jurors Court reporter Witnesses Witnesses‘ attorneys (not allowed in federal system but allowed in some states) Prosecutor No. Preliminary Hearing Prosecutor Grand jurors Court reporter Witnesses Witnesses‘ attorneys D D counsel Judicial officer Prosecutor D counsel Yes.

c.

d. e.

Who attends?

Who has subpoena power? Discovery?

D. See Preliminary Hearing Handout:

II. JEOPARDY AND JOINDER: A. Double Jeopardy: Summary a. Federal Rule: same elements test (but still lots of confusion on how to apply). b. State Rule: same elements is minimum and then add on other tests. c. Role of Legislature: what can and can‘t the legislature do to change these rules? d. ??? Distinguish b/w different types of DJ problems. e. Multiple Punishment – see handout example. f. Incomplete Offense Exception – see handout example. g. Impact of Collateral Estoppel. 1. Generally: a. Prosecutor must plan for the future when filing charges. b. Constitutional Basis:

25

c.

d.

e.

When Jeopardy Attaches: 1) Before mistrial 2) Jury Trial: when jury sworn in. 3) Non-jury trial: when first witness is sworn in. 4) Judgement of dismissal granted before trial is NOT a bar to a subsequent prosecution for the same offense. Purpose: 1) Finality 2) To ensure D will not be living in continuing state of anxiety and insecurity. 3) Avoid possibility, that through repeated prosecutions, an innocent person will be found guilty. DJ protects criminal Ds from successive PUNISHMENT for same offense + successive PROSECUTION for same offense - examples: 1) a second prosecution after acquittal; 2) a second prosecution after conviction, and 3) multiple punishments for the same offense within the same proceeding.

2.

Multiple Sovereigns: a. Dual Sovereignty: 1) Federal Rule: DJ does not prohibit a 2nd prosecution by different sovereign (even for an offense defined by identical elements which would be considered the "same offense" within one jurisdiction). 2) State Approach: a) Majority Position: substantial majority of states follow the U.S. S.Ct. and hold that the constitutional double jeopardy bar does not prohibit a 2 nd prosecution. b) Most states have adopted statutory limits on 2nd prosecutions limited to particular categories of offenses. (1) Purpose: (a) Prevent the unfairness of multiple prosecutions. (b) Avoid unnecessary use of state resources to prosecute cases already adequately prosecuted in federal courts. (2) Often provide for exceptions when a re-prosecution serves a different purpose or addresses a different evil from the earlier prosecution. Background on Dual Sovereignty Exception to DJ: 1) US v. Lanza (US 1922): a) Established dual sovereignty exception: when 2 governments derive their power from different sources, D can be tried by both governments for the same act. b) Justifications: (1) Federalism: both governments as sovereigns should have an opportunity to enforce their laws. (2) Also don‘t want people to go to system with easier penalty and plead guilty to avoid the harsher sanction. Bartkus v. IL (US 1959) (Justice Frankfurter): a) DJ (and dual sovereignty exception) incorporated to states via 14A b) Cooperation: dual sovereignty exception applies, even though state prosecution was essentially a repeat of federal prosecution (federal and state authorities worked as a team, etc.) and D was acquitted. c) 2 different statutes. d) State was not acting merely as an instrument of the federal government in the 2 nd prosecution, but pursuing its own interests.

b.

2)

26

3)

United States Attorneys‘ Manual §9-2.142: Dual Prosecution and Successive Federal Prosecution ("Petite" Policy): a) Statement of Policy: (1) Precludes the initiation or continuation of a federal prosecution following a state prosecution or a prior federal prosecution based on substantially the same act, acts, or transaction unless there is a compelling federal interest supporting the dual or successive federal prosecution. (2) Rationale: regulate prosecutorial discretion + resource allocation. b) Application of Policy (1) Authorization: before a trial can be commenced, must get authorization from appropriate Assistant Attorney General where there is prior state proceeding or a prior federal prosecution resulting in . . . (a) acquittal (b) conviction (c) dismissal or other termination of a case on its merits. (2) Policy does NOT apply where the prior state prosecution involved only a minor part of the federal offense charged. (3) If a prospective prosecution is, technically speaking, for an act different from the prior prosecution or requires proof of different elements, a 2 nd prosecution will not be authorized if the 2 acts were part of the same transaction and there is no compelling interest supporting a subsequent federal prosecution. c) Factors: do the following factors, if applicable to the prosecution in question, outweigh the general policy against multiple prosecutions based on substantially the same act or acts? (1) Did the prior proceeding leave substantial federal interests demonstrably unvindicated? (a) if so, is conviction an anticipated goal of the successive proceeding? (b) if convicted in prior proceeding, is an enhanced sentence anticipated in the successive proceeding? (2) If prior (state) proceeding resulted in a conviction, was that D charged or convicted for an offense carrying a maximum penalty substantially below that of the federal offense? (3) Were the choices made in the charging or the ultimate disposition of the prior proceeding affected by any of the following factors: (a) infection of the proceeding by incompetence, corruption, intimidation, or undue influence. (b) court or jury nullification involving an important federal interest, in blatant disregard of the evidence. (c) the failure of the state to prove an element of the state offense which is not an element of the federal offense (and this failure led to an acquittal at the state level) (d) the unavailability of significant evidence in the prior proceeding whether because it was not timely discovered or because it was suppressed as the result of an erroneous view of the law. (e) fairness to other D s or significant resource considerations which favor separate prosecutions. (f) the original indictment was held insufficient as a matter of law or there was a fatal variance between the offenses charged and the proof at trial. d) Apply to Rodney King case. State v. Franklin (Utah 1987): a) Facts: D convicted in federal court for violating civil rights, then convicted of murder in the state court. b) UT Policy: prosecution in another jurisdiction is a bar to subsequent prosecution in this jurisdiction if

4)

27

c) d)

(1) Former prosecution resulted in an acquittal, conviction, or termination of prosecution. (2) The subsequent prosecution is for the "same offense or offenses." Holding: Court rejects D‘s argument that "same offense" means "offenses arising from the same criminal episode.‖ Reasoning (1) For this court, it is enough that there are two applicable statutes (UT statute and a federal statute) - ultimately, rests on the same federalism notions that the U.S. S.Ct. decisions do. (2) Court rejects "balancing test" (which would allow judge to determine if state‘s interests were vindicated in the other proceeding). (3) Don‘t want trial courts to have this "charging" like power.

c.

How would adopting an absolute DJ policy (that is, not allowing any subsequent prosecutions) be a good guideline for determining what cases to prosecute? 1) With a prior conviction, not really any gain in going after D again. 2) A prior acquittal says that the prosecution will have difficulties in a 2 nd trial. 3) Fundamental fairness. Silver Platters and Dual Sovereigns: 1) Federal courts will admit evidence obtained by state government agents who break their own rules. 2) States courts will also accept evidence from government agents in another jurisdiction that violate the rules of that other jurisdiction. Native American nations are sovereign nations.

d.

e. 3.

Same Offense: Same conduct test Same element test Same evidence test Same statute Least protective of D

Same episode or transaction test Most protective of D a.

Defining “Offenses”: 1) What is the same offense? a) comparing statute to statute b) comparing conduct to statute Where Does Court look to Determine Same Offense? a) Statute (what most courts focus on). b) Jury instructions c) Charging instrument. d) Some argue we should also look at what the jury would conclude. Rules: a) Federal rule = Blockburger same elements test. b) States approach = Blockburger same elements test is constitutional minimum but states can provide greater protection to D under either state constitution or statute. (1) Majority position = Blockburger same elements test. (2) Few states have adopted statutory tests for whether a 2nd charge is for the "same offense." (3) Some states add same conduct tests by statute. (4) Handful of states follow Lessary (same elements + same conduct). (5) Very few states will apply the same transaction (same episode or same incident test)

2)

3)

28

4)

SAME ELEMENTS TEST - Blockburger v. US (US 1932): a) Same elements test: where the same transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not. (1) If the offenses have any different "elements" they are not the same offense b) Criticism: (1) Too easy for government to obtain multiple convictions based on same conduct. (2) Blockburger was created for the multiple punishment setting – works less well in other DJ settings – like what? c) Post-script: was overruled (in Grady) but then reinstated.

5)

SAME CONDUCT TEST - Grady v. Corbin (US 1990) and State v. Lessary (Haw 1994): a) Same elements test + same conduct test: prosecution of the 2nd offense is barred if, to establish an essential element of an offense charged in the 2 nd prosecution, the government will prove conduct that constitutes an offense for which the D has already been prosecuted (1) Critical inquiry = what conduct the state will prove, not the evidence the State will use to prove that conduct. b) Purpose: protects individuals from multiple prosecutions for the same act without unnecessarily restricting the ability of the state to prosecute individuals who perform separate acts that independently constitute separate offenses (this test added on top of Blockburger basic test). c) Reject the same transaction/episode test because (1) Broad scope. (2) Hard to define (court does not want to determine when one transaction ends and another begins). (3) Too much protection to D. d) Criticism: (1) Too unpredictable. (2) Complicated to apply. (3) Incentive for D counsel to plead to lesser charges (even if not guilty) to prevent later trial. e) Post-script: Corbin is overruled (by Dixon v. US) and Blockburger is reinstated on the federal level but states can follow Corbin if they wish – Blockburger is the minimum.

6)

Multiple Punishment Prong of DJ: a) Mo. V. Hunter: the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended. (1) Most states follow this and hold that in the context of a single prosecution, the "same offense" tests serve only to help determine legislative intent with regard to whether separate convictions and punishments are appropriate with regard to a single criminal episode or event. Punishment for Greater and Lesser Included Offense: courts generally hold that the double jeopardy principle bars punishment for an offense and a lesser included offense issue becomes determining a lesser included offense. States Without DJ Provisions: a) CT imports through due process. b) MD, MA and NC rely on common law as the source for their double jeopardy rules.

7)

8)

29

c) b.

VT simply adopted federal rules.

Multiplicity: 1) 2) Generally: when state tries to parse the offender‘s continuous stream of conduct into the discrete statutory ―slots‖ of separate criminal offends. People v. Wilson (Mich 1997): issue here, 1 conspiracy or 2 conspiracies? a) Totality of Circumstances - court compares the following elements from each trial to determine whether it is part of the same event (and thus barred): (1) Time (overlap?) (2) Same people/co-conspirators (same?) (3) Is it the same statutory offense/same statute? (4) Are the same acts/offenses described in each trial? (5) Are the locations of the conspiracies described in each trial the same? (same general area, etc?) (6) Are the conspiracies described in each trial based on the same agreement? b) The ultimate determination is how similar the 2 trials will look (is one trial a "lesser included trial"?) - very fact specific analysis. Special Problems of Conspiracies: a) Ongoing offense, making it difficult to determine when one conspiracy ends and another begins. b) Conspiracies generally involve many individuals with varying roles and relationships. c) Members of conspiracies may engage in a wide variety of behavior, not all of which will be attributable to all members of the conspiracy. d) These procedural difficulties regarding the parsing of conspiracies largely reflect substantive battles over the definition, scope, and incidents of conspiracies.

3)

4.

Uncompleted Offense Exception: a. Rule: even if same offense under Blockburger, no DJ bar exists if D is prosecuted or punished for offense uncompleted at time of 1st prosecution or punishment – see hypo from class. b. ??? Is this the same as the Additional Facts Exception? c. Courts take broad view – extended to situations where evidence cannot be obtained. Collateral Estoppel a. b. Generally: DJ deals with ‗same offense,‘ CE deals with ‗same facts‘. Rules 1) Federal Rule: federal guarantee against DJ includes concept of CE – ―when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated b/w the same parties in a future lawsuit.‖ a) Requirements: (1) acquittal at first trial (2) Identifiable issue of fact resolved by acquittal. b) Asymmetrical: only binds government (not private parties and not D). c) Many limits on application of CE to criminal context. (1) Hard to tell whether issues was resolved – general verdicts. (2) Shot-Gun Defense: if D counsel raises doubt of more than one issue of government‘s case, then D cannot claim CE (due to court‘s reliance on trial record as source of evidence to show prejudice) . (3) Inconsistent verdicts stand – therefore, if there is acquittal and conviction (even if inconsistent) judge cannot touch acquittal, can only order new trial for conviction.

5.

30

(4) ??? Clearest CE comes when D acquitted in 1st trial and 2d trial rests on same elements that are essential to 2nd jury. 2) c. State Approach: see Ferrel v. State (Md 1990).

Civil Definition: 1) Once a court has spoken, can‘t keep re-litigating that issue. 2) Pros has to live with 1st Juries‘ result/finding of fact Criminal Definition: 1) Requirement of Due Process. 2) Government cannot bring charges based on the same facts in subsequent trials if a court/jury has already made a determination of those facts. a) This is to prevent the govt. from bringing charges until they find a jury that doesn‘t buy the D ‘s explanation/defense to those facts. 3) Collateral estoppel is not very common in the criminal arena because of the general verdict: a) Juries are not generally asked the basis of their verdict – thus can‘t know which facts they believed – and impossible to know which facts are established. B) So, if it is not established why a jury acquitted, the government can go back again with different charges and a different theory.

d.



See hypotheticals in Tomika‘s outline.

B. Joinder: Summary a. Joinder of Offenses: 1) Permissive joinder: federal rule is very liberal (3 tests) – most states follow federal rule: a) Prosecution gets to chose. b) D can argue by show improper joinder under 8(a) 2) Also check for mandatory joinder rules. 3) Severance: D must show prejudice a) At judge‘s discretion even if he finds prejudice. b) Examples = inability of D to pursue separate and inconsistent defenses to the different charges and other/Spillover Crimes Evidence. b. Joinder of Ds: 1) Federal Rule: federal courts have shown a strong preference for joint trials - severance requests are now routinely denied. 2) State Approaches: generally favor separate trials. 3) Examples of Prejudice: a) facially incriminating b) harmful "rub-off effect" c) significant disparity in the amount of evidence d) Antagonist defenses. c. Effect of DJ d. Effect of CE 1. Discretionary Joinder and Severance of OFFENSES: a. Prosecution Gets to Select Joinder – they can later ask for severance as can D. 1) Prosecution wants joinder b/c: a) Evidentiary impacts – spillover prejudice to convict all. b) Possibility of fingerpointing by D. c) Judicial economy. d) Tactical concern: multiple trials makes witness more vulnerable to impeachment.

31

e) b.

Emotion drain on victim, witness, prosecution to have to do more than one trial.

D’s Arguments Against Joinder: 1) Improper under 8(a). 2) Even if proper, there is prejudice. Federal Rules: generally permissive joinder broadly allowed. 1) Fed Rule Crim Pro 8(a): 2 or more offenders may charged in the same indictment or information in a separate count for each offense charged if they are a) of the same or similar character (similarity of offenses), OR b) based on the same act or transaction (connected together), OR c) on 2 or more acts or transactions connected together or constituting parts of a common scheme or plan. 2) Fed Rule Crim Pro 13: Court may order 2 or more indictments or informations or both to be tried together if the offenses could have been joined in a single indictment or information. 3) Fed Rule Crim Pro 14 (Severance): if a D/prosecutor either permissively or mandatorily joins, the trial judge can sever the charges or the Ds at his discretion because it would create prejudice for a D (this is a continuing duty – judge can grant severance whenever either D is unfairly prejudiced by joinder). State Rules: 1) Examples: a) VT Rule Crim Pro 8(a) b) VT Rule Crim Pro 14 c) Long v. US (DC 1996): (1) Holding: lower court erroneously joined 2 offenses for trial which occurred 1 block apart because the defense strategies for each offense were incompatible. (2) Rules: (a) Trial judge should make a determination regarding the probative vs. prejudicial value of the evidence of one offense used to prove elements of another offense. (b) Whenever evidence from one trial would not be admissible at another trial (if the offenses were tried separately), the trial judge should probably sever the offenses into 2 trials. (c) If the evidence would be admissible at both trials (if the offenses were tried separately), then makes sense for the offenses to be tried together. 2) State Permissive Joinder Provisions: a) Slight majority of states track the federal rule on permissive joinder and allow prosecutors or judges to join offense for trial, whether they are: (1) Related charges ("based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan"); OR (2) Similar but unrelated charges (having the "same or similar character"). b) Significant minority authorize joinder only for "related" offense utilizing a variety of formulations. 3) State Severance Provisions: majority of states have separate (from joinder) provisions governing severance: a) Most states require severance upon a finding of prejudice, or if necessary to promote a "fair determination of innocence or guilt." b) About 7 states give the D an absolute right to severance of "unrelated but similar offenses" - in effect, this approach bars the joinder of unrelated but similar offenses unless the D consents. c) A few states authorize severance in the "interests of justice" or if charges were "misjoined."

c.

d.

32

e.

Very Hard for D to Show Prejudice (in motion for severance or improper joinder on appeal) – Fact Specific Argument - Sources of Prejudice in Joinder of Offenses Situations: 1) Test for prejudice: a) Joint D Trials: can jury keep the evidence for each D compartmentalized so as to render a fair and impartial trial for each D? b) Joint Charge trials: court must weigh value of evidence and prejudicial effect of evidence. Inability of D to pursue separate and inconsistent defenses to the different charges (most common). Other/Spillover Crimes Evidence. a) Example: rules of evidence usually limit prosecutor‘s ability to introduce evidence of 1 crime during the trial of another crime, because the jury might infer that a person who committed 1 crime is more likely to have committed a 2 nd crime. (1) Joinder of offenses might allow a prosecutor to overcome this rule. (2) Thus, severance is often granted when a court determines that the rules of evidence would exclude evidence of one charge in a separate trial of the other charge. b) However, even where the rules of evidence might exclude evidence of one crime during a separate trial for the other crime, the charges can still be joined if the evidence remains "simple and distinct" at trial. (1) Term "simple and distinct" refers both to the content of the evidence and to the method the prosecution uses to present it. (2) Example, if witnesses for one crime are presented together, followed by a different set for the other crime, the evidence is more likely to be considered "simple and distinct."

2) 3)

f.

Court’s Role: 1) Generally, judge should consider: a) Whether joinder will impede D strategy. b) Is evidence going to be brought up at both trials. 2) Judge has three options if he finds prejudice mid-trial: a) Declare mistrial. b) Have prosecution drop one charge. c) Proceed with trial but give cautionary instruction (probably what he will choose).

2.

Joint Trials of DEFENDANTS: a. Rules for When Prosecution Can Join Ds 1) Federal Rule: federal courts have shown a strong preference for joint trials - severance requests are now routinely denied. 2) State Approaches: generally favor separate trials. 3) Lesson: know the rules wherever you are. Sources of Prejudice in Joint-D Trials 1) Majority Approach: cases have generally held that D is prejudiced enough to require severance from a co-D when: a) Evidence admitted against one D is facially incriminating to the other D (such as a prior statement of 1 co-D that incriminates the other co-D ); OR b) Evidence admitted against 1 D influences the jury so strongly that it has a harmful "rub-off effect" on the other D; OR c) There is a significant disparity in the amount of evidence introduced against each of the 2 D s; OR

b.

33

d)

Antagonist defenses - How antagonistic do offenses have to be? (1) Within the discretion of the trial judge even if he finds prejudice (considers prejudice and efficiency). (2) Test = in order to believe the testimony offered by D1, fact-finder would have to automatically disbelieve D2. (3) Problem: judge cannot ask D if he is going to testify (b/c 5A violation) thus must guess about prejudice.

2)

Court‘s Role: a) Trial court must protect the confrontation rights of non-confessing D where co-D has confessed and that confession is admissible only against the confessing D. b) Cautionary Jury Instructions

c. 3.

Appeal: reviewing court looks at trial judge‘s cautionary jury instructions, reluctant to overturn b/c abuse of discretion standard.

DJ Effects: a. Waiver: If D seeks severance, cannot seek DJ - better for prosecution to bring all charges together, b/c then if D seeks severance, D waives DJ claim. b. If charging under SEPARATE STATUTES, use the three major tests for determine same offense. c. If charging under SAME STATUTE, evaluate factual allegations to determine if one offense of two (multiplicity). CE Effects: available if D wins acquittal in first trial – precludes relitigation of the issue.

4.

III. FORFEITURE OF ASSETS: A. Property Subject to Forfeiture: 1. Instrumentalities and Proceeds: a. Rule: there must be a connection b/w assets and crime: 1) Used in crime; OR 2) Proceeds of the crime. Goals: 1) $ to government branches. 2) Removes instrumentalities of Crime. 3) Make crime unprofitable. Give Government Huge Advantage Over D. Can Try to Argue 8A violation but Rarely Granted.

b.

c. d.

B. Procedures for Initiating Forfeiture: 1. Process: a. File civil complaint or use criminal forfeiture proceeding. b. Must have P/C to believe property is subject to forfeiture. c. Hearing. 1) Government must prove by preponderance of evidence (sometime higher standard). 2) Burden shifts to owner to show reason why he should not be accountable.

34

C. Procedures for Resolving Forfeiture: 1. 2. Process: Parties and Innocent Owners a. Rule: Innocent owners are NOT exempted from forfeiture unless owners do not have ability to control over (3 exceptions): 1) b. Most statutes have innocent owner provisions: try to protect people who are innocent but require them to take action when they obtain knowledge. 1) Requirements: a) Did non know about conduct; OR b) If knew, did all he or she could to prevent (unless hazardous). Attorneys‘ Fees: a. Unethical to collect contingent fees in criminal case. b. Government may be able to take away counsel‘s fees if can show it is proceeds of crime.

3.

PART II. RESOLVING GUILT AND INNOCENCE:

VI. DISCOVERY AND SPEEDY TRIAL: A. Discovery: Summary a. Prosecution’s duty to disclose: 1) Exculpatory: D must show materiality + government withheld. a) Different rules on materiality requirements on federal and state level (whether D must request and specificity of request). 2) Loss/destroyed evidence: D must show loss of evidence + bad faith. 3) Routine Evidence: negotiate with prosecutor. b. D’s obligation to disclose is increasing – puts D in catch 22. c. EXAM QUESTION 1) Is it more or less justifiable to not disclose a witness if prosecution is going to call him at trial? 2) Would a statement be material under Brady? a) Was there uncorrected perjury by prosecution witness (look to this first b/c lower burden). b) Look at specificity of request (high burden on D). c) Did witness testify at trial – was tape turned over to D? d) If not perjury and witness did not testify, harder for D to show prejudice. 1. Generally: a. Discovery is the heart and soul of civil litigation – in criminal litigation, discovery is not as important. b. Criminal discovery is not as symmetrical as civil: 1) D‘s/prosecutors don‘t have access to the same information. 2) We don‘t expect any co-operation in this system - D ‘s privilege against selfincrimination—if D doesn‘t have to give a lot up, why should prosecution? c. Wide variety of discovery rules among jurisdictions:

35

d.

Federal model allows for very little exchange. Some states open up virtually everything. Many individual prosecutor‘s offices have "open file" policies a) Labor saving device. b) Encourages plea bargains b/c if D ‘s know all the evidence the government has against them, they might be more likely to plea. c) Fairness. Look Beyond the Discovery Rules: 1) Preliminary hearing, where the government establishes probable cause to support the charges in the case, often gives D a glimpse of the government‘s theory of the case. 2) Negotiate with local prosecutor - say "you show me mine, I‘ll show you yours."

1) 2) 3)

2.

Prosecution Disclosures: a. b. c. d. Constitutional Provisions = 6A Very hard for D to win post trial appeals under exculpatory evidence and loss evidence duties. Prosecution Has Affirmative Duty to Avoid the Knowing Use of False Evidence 1) Result = reversal. D Counsel’s Goal in Seek Discovery: 1) Find a defense theory. 2) Look for pretrial motions. 3) Figure out how to plead. 4) Determine bargaining power in plea agreement. Exculpatory Evidence - see hypo handout from class: 1) Federal Rule: prosecution has duty to disclose material exculpatory evidence to D – failure to disclose violates Due Process – reversal? a) History of the Federal Rule: (1) Brady v. MD (US 1963): due process requires the prosecution to disclose "evidence favorable to an accused" if that evidence is "material either to guilt or to punishment" – was this limited to specifically requested information? (2) US v. Agurs (US 1976): adds two-tier framework for determining materiality: (a) Two-tier framework for determining materiality: i. Evidence SPECIFICALLY requested by D was material if it "might have affected the outcome of the trial"  Lesser burden on D b/c prosecution on notice. ii. Evidence NOT REQUESTED or only GENERALLY REQUESTED is material only if it created a reasonable doubt that did not otherwise exist.  Higher burden on D b/c prosecution not on notice – only notice is nature of evidence itself. (3) US v. Bagley (US 1985): rejects two tier approach: (a) Adopts single standard = undisclosed evidence is material if there is a ―reasonable probability‖ that it ―would‖ have altered the outcome of the trial. (b) Reasonable probability = ―a probability sufficient to undermine confidence in the outcome.‖ Brady Rule in Application: a) When Raised?

e.

2)

36

(1) Usually not raised until after conviction. (2) Hard to determine before trial b/c hard to tell how evidence will effect outcome. b) Bagley read Brady as having 3 requirements – D must show evidence was: (1) Material (restrictive definition); AND (2) Exculpatory (broad definition); AND (3) Withheld by government (broad definition). ????? Materiality – what most of the debate has been about/major limit on disclose duty: (1) Evolving Definition: (a) Brady read this broadly to require significant relevance. (b) Later US S CT (Bagley) cases have narrowed the meaning to require strong probative value (higher burden on D). (2) Federal Standard = ―reasonable probability‖ that it would have altered the outcome of the trial. (a) ??? No request requirements. (b) Same standard as prejudice prong standard in ineffective counsel cases [see Strickland]. (3) ??? State Standard = split b/w current federal rule under Bagley‘s single standard (majority) and Agur‘s two-tier standard depending upon specificity of D‘s request (strong minority): (a) Two-tier Approach [see People v. Vilardi (NY 1990): i. Evidence SPECIFICALLY requested by D was material if it "might have affected the outcome of the trial" ii. Evidence NOT REQUESTED or only GENERALLY REQUESTED is material only if it created a reasonable doubt that did not otherwise exist. (b) Reasons for reject Bagley standard: worry that Bagley too hard on D and too easy on prosecution. (c) Having to Request Info Might Actually Have an Adverse Effect of D Counsel: i. If determining materiality rests on the specificity of the D‘s request, then D counsel‘s request for information becomes crucial. ii. Hard on D counsel b/c he cannot anticipate evidence. iii. Courts also have trouble determining what is and is not a specific request. d) Exculpatory (broad definition): (1) Any evidence that D can use to develop a defense theory (even if prosecutor still convinced of D‘s guilt). (2) Includes impeachment evidence [see Vilardi]. (3) Includes sentencing related evidence. (4) If prosecutor resists or winces or tries to rationalize not disclosing, then there is a pretty good argument that prosecutor should disclose. Withheld by government (broad definition). (1) D must show evidence was in government‘s or law enforcement‘s hands. (a) D does NOT have to show bad faith or that individual prosecutor knew about the evidence. (2) Court is protecting against fairness of the trial (NOT against the prosecutor‘s ethical duty).

c)

e)

3)

Sources of Obligation:

37

a) b) c) d)

Procedural Rules Statutes Constitution (Due Process) Professional Responsibility Rules (see PA Rule 3.8 – Special Responsibilities of a Prosecutor handout) (1) Role is to seek justice (not to get a conviction at any cost). (2) Prosecutor is NOT an unleashed adversary in judicial system – he has special ethical obligations.

4)

Arguments For and Against Turning Over Exculpatory Evidence: a) For: (1) Fairness (2) Wrong result. b) Against: (1) Easier trial. (2) Increased chance of conviction. (3) More likely to get high sentence. Remedy if D shows prosecutor knowingly and unethically did not disclose: a) Job-related penalty. b) Judicial contempt. c) D can seek civil damages (but there is usually prosecutorial immunity). d) Action by bar association. Bottom Line - Not Much Incentive for Prosecution to Disclose: a) Constitutional requirements for disclosing exculpatory evidence do not put much pressure on D b/c: b) D may never catch prosecution (not know he is missing evidence). c) Even if D does catch prosecutor, very hard to show. d) After the Fact Standard: these rules do not give prosecutor much guidance/incentive before trial

5)

6)

f.

Uncorrected Perjured Testimony of Government Witnesses 1) Federal Rule: where a prosecutor knows or should know that government witnesses are presenting false testimony or evidence, due process requires the prosecutor to disclose this fact to the D and the court. a) Perjury is material if there is any reasonable likelihood that it affected the outcome of the trial. 2) State Rule: Government Duty to Preserve Evidence 1) Federal Rule: unless D can show LOSS of EVIDENCE + BAD FAITH on part of police, prosecutor, failure to preserve potentially useful evidence does NOT constitute a due process violation [see AZ v. Youngblood (US 1988) – this past summer, the D in was exonerated by DNA testing]. a) Bad Faith: D must show (1) government was aware of effect evidence may have; AND (2) D will not be able to get evidence elsewhere. b) Negligence may not rise to level of bad faith. c) DNA destruction is common in many police departments after certain time period. d) Remedy: (1) Exclude evidence or testimony based on lost or destroyed evidence (2) Give cautionary jury instruction. e) In determining remedy, a trial court should consider: (1) Degree of negligence or bad faith involved. (2) Importance of the missing evidence in light of the remaining evidence.

g.

38

2) 3)

(3) Sufficiency of the other evidence to sustain the conviction. ??? State Rules: Hard to evaluate such cases b/c: a) Cannot tell whether certain evidence would be helpful or hurtful. b) Hard to find a remedy (cannot have a new trial). c) Thus, fundamental question = who gets benefit of doubt and who should bear the burden of lost evidence.

h.

Routine Types of Discovery: 1) B/c it is very hard for D to win post trial appeal on discovery grounds, routine discovery rules are very IMPORTANT a) Historically, criminal discovery rules have gone from restrictive to broad. b) For all this discovery, the emphasis is on written materials, rather than the knowledge and viewpoints of the people who have provided or analyzed the evidence 3 Variables a) What does D get? b) When does he get it? c) What showing is necessary before D gets it? Examples: a) D statements b) D criminal record c) Identification evidence d) Tangible evidence e) Test results f) Electronic Surveillance results.

2)

3)

4)

Non-Expert and Potential Witnesses Statements: a) Federal Rule: provides for disclosure by both the prosecution and D of any written "statements" of any witnesses (other than the D) AFTER witness has testified on direct examination at trial. (1) Any disclosure of witness statements BEFORE trial (or before entry of a guilty plea) results from negotiation between the parties. b) States: (1) NC: prosecution does not have to turn over info about witness testimony until trial AFTER witness testifies (a) Arguments AGAINST Giving Witness Statements to D: fear of witness tampering and fear D will tailor his defense. (b) Arguments FOR Giving Witness Statements to D: makes it hard to plea bargain. (c) Look beyond the rules: get around this by find out what the particular prosecutor is willing to do. i. Depend on local custom. ii. Reputation of D counsel. iii. Relationship b/w D counsel and prosecutor. (2) NJ: allows D to assess desirability of plea agreement (3) Problems with state rules that require showing of need by D: (a) D in catch 22 b/c has to reveal his case. (4) Some states allow but witness lists but fears of tampering and tailoring. (5) Problems with having D conduct own investigation: costly for tax payers and inability of D. Great Judicial Discretion in Select Remedy if there is Violation of Discovery Rules: a) Continuances (to allow the party time to develop a response to the evidence)

5)

39

b) c) d) 3.

Exclusion of the evidence that the party should have disclosed (particularly where the aggrieved party can show some prejudice flowing from the discovery violation) Contempt Dismissal: for the most serious discovery violations by prosecutors, trial courts might dismiss a case.

Defense Disclosures: a. Generally: 1) Traditionally, no obligation on D to provide info – big difference from civil litigation. 2) Current trend: impose increased discovery obligations on D. ??? Federal Rule: requires reciprocity (D must ask for the same information from the prosecution before the prosecution can ask it from the D ). State Rule: 1) PA Rule: a) Mandatory: (1) Alibi (2) Insanity Defense b) Discretionary: State v. Carkulis (Mont 1987): a) Constitutional challenges to these rules: (1) 5A – court rejects b/c not D‘s personal testimony and no compulsion (merely tough choice). (2) Due Process: reciprocity prevents against this but in reality D counsel usually does not investigate thoroughly enough before hand so D will get short end of stick. (3) 6A – best chance for D: government must show a sufficient interest to overcome compulsory process requirement – courts have to be wary of this when crafting a sanction. b) Different Roles and Jobs of Prosecutor and D Counsel: (1) Prosecutor out to get truth (ideally). (2) D Counsel out to avoid jail for D c) Problems with this rule requiring D to disclose witnesses: (1) Reveal D strategy – D counsel will have to decide whether D will testify (usually this decision not made until later). (2) Gives prosecution more coercive interview potential: (a) Turn witnesses to government‘s side. (b) Impeach (c) Given impression that bad things will happen if witness testifies.

b. c.

2)

d. 4.

Common remedy for non-obliging D = judge will exclude all evidence except D‘s testimony.

Discovery Ethics – see Crim Pro handout:

B. Speedy Trial Preparations: Summary 1. Generally: a. Constitutional Basis = 6A b. Purposes:

40

1) 2) 2.

Relieve D of unnecessary consequence of being accused (loss of witness, memory, government might build better case, evidence becomes less reliable, harm to D‘s reputation, sitting in jail) Promote society‘s interest in prompt disposing of charges (erode public‘s faith in justice system, D out on bail harming society, no closure for victim).

Pre-Accusation Delay: a. Generally 1) NOT Violation of the Right to Speedy Trial BUT look to other violations: 2) Remedy = dismissal with prejudice. 3) Very hard for D to show due process violation here – SOL is better bet. 4) See State v. Trompeter (Iowa 1996). Look first at SOL - see NY Crim Pro Law 30.10. 1) Exceptions: a) Sexual offense with child. b) Fiduciary duty 2) Problems with John Doe Charges. 3) When State has no SOL requirements, may be more willing to consider due process challenge. Federal Rule for Due Process (D must show unreasonable delay + substantial prejudice). 1) Unreasonable Delay – balancing test: a) Length of delay: (1) Threshold requirement. (2) Relation to Reason for Delay: longer delay requires correspondingly better reason to justify. b) Reason for delay – focus on good faith of prosecutor [see US v. Lovasco (US 1977)]: (1) Legitimate Reasons for Delay: a) Examples: i. Time required for further investigation. ii. Prosecutor‘s reasonable doubt that accused is guilty. iii. Disproportion b/w authorized punishment and offense. iv. Possible improper motives of complaintant. v. Reluctance of victim to testify. vi. Coop of accused in convictions of others. vii. Availability and likelihood of new evidence in other jurisdiction. viii. Best reason is NEW EVIDENCE. b) These are also the same factors the prosecution considers when making charging decisions (shows why court reluctance to find due process – great deference to prosecutorial discretion). c) Court’s Role: if prosecution gives one of these reasons, judge will ask what has changed that makes prosecution now ready to file. (2) Bad Reasons for Delay: (a) Negotiating lever – club over D. (b) Post-pone defense investigation (c) To avoid concurrent sentencing. (d) To disadvantage D‘s case. (e) To avoid juvenile system. (3) Relation to Length of Delay Prejudice: a) Harm to D‘s case. b) Harm to D personally.

b.

c.

2)

41

d.

State Rule for Due Process: 1) ALL states have read their state constitutions to limit a few types of pre-accusation delay. 2) Two general approaches: a) One group of jurisdictions requires D prove both the prejudice and an intentional prosecutorial delay to achieve a tactical advantage. b) Other states give the D the initial burden of proving prejudice, and then require the government to prove a valid reason for the delay.

3.

Speedy Trial After Accusation: a. b. Remedy = dismissal with prejudice. Federal Rule: 1) 4 Factor Test [see Barker v. Wingo (US 1972)]: a) Length of delay: (1) Threshold requirement. (2) Relation to Reason for Delay: longer delay requires correspondingly better reason to justify. b) Reason for delay: (1) Delay by Prosecution - Is delay intentional or negligent? (a) Intentional delay: favor D‘s claim. (b) Negligent delay: may favor D‘s claim but rare. (c) Delay to get more evidence is legitimate even though seems to indicate prosecution should not have filed charges when it did – shows courts‘ reluctance to grant this right. (2) Delay by D: (a) Motions for continuance weigh heavily AGAINST D – court will look at D‘s reasons for seeking motion. (b) D is NOT responsible for delay caused by his counsel. (c) Waiver (3) Neutral Factor Delay: (a) Overloaded dockets (even though it might be argued these are fault of the government, this factor will be considered neutral). D‘s assertion or non-assertion of right: (1) D excused from asserting right if: (a) Ineffective assistance of counsel; OR (b) D does not know about charges against him. (2) D may raise speedy trial issue even if no motion has been made before trial failure to assert right is heavily weighted by the court. Prejudice: (1) Nature and amount of prejudice resulting from delay must be considered in light of the consequences the right is designed to protect against. (2) Presumptive Prejudice: (3) 3 types: (a) Oppressive pretrial incarnation. (b) Anxiety and concern of accused (c) Possibility that defense will be impaired (usually considered most serious). (4) Courts reluctant b/c of drastic remedy.

c)

d)

2)

Federal Speedy Trial Act: a) Thought state speedy trial acts hurt public interest. b) D‘s motions for continuance is not automatically excludable time.

42

c.

State Rules: 1) Right to Speedy Trial Incorporated via 14A a) Most states use Barker 4 factor test. b) Pre-Barker Demand Waiver Rule: if D does not assert right to speedy trial, he waived it BUT now non-assertion will weigh against D. 2) State Speedy Trial Act: D‘s motions for continuance is automatically excludable time. a) Differences Across States in: (1) How they define the time period that may elapse b/w accusation and start of trial. (2) Methods available to extend # of days parties may use to prepare for trial. (3) Remedies provided. Some States Have Statures Protecting Victim’s Right to Speedy Trial:

d.

VII. PLEAS AND BARGAINS: Summary: 1. Decision to plead guilty must be made with Great Care 2. Enforcement: plea bargains are binding (like K). 3. Conditional plea bargains permitted: waiver of appeal rights permitted 4. Limitations on ability to plea bargain from different groups. 5. Requirements for Guilty Plea: knowing + voluntary + factual basis. 6. Making and breaking plea bargains - remedies. 7. Challenging Pleas – Plea Withdrawals: a. Breach of Agreement/Failure to comply with terms b. Failure to comply with statute, rule of court or other entity. c. Constitutional defect. 1) Not knowing, intelligent and voluntary. 2) Ineffective assistance of counsel A. Why Bargain? 1. 2. Introduction: overwhelming majority of cases resolved through pleas (90%). Decision to Plead Guilty Must be Made With Great Care a. Not guilty plea is NOT a claim of innocence but an assertion of constitutional rights. b. Guilty plea is a WAIVER of constitutional rights. c. As D counsel, make sure your client know what he is giving up when he pleads guilty. Three kinds of bargains: a. Charge bargain: DA agrees to dismiss or reduce pending charges to something less serious in exchange for D ‘s guilty plea [see F.R. Crim. P. 11(e)(1)(A)]. b. Sentence bargain: DA agrees to recommend certain sentence or not to oppose D ‘s request for certain sentence in exchange for guilty plea [see F.R. Crim. P. 11(e)(1)(B)]. c. Fact bargain: DA offers to stipulate only to provable facts, like lesser amount of drugs, which can make the charge itself less serious and thereby affect sentencing, esp. in "real offense" systems. Plea Types: a. Not guilty b. Guilty c. Nolo contendere (no contest): treated like guilty plea, allows court to impose sanctions, but nolo plea cannot be used against D in any later civil proceeding.

3.

4.

43

d. e. 5.

Conditional plea: allows D to plead guilty while reserving the right to appeal on a defined pretrial issue, like voluntariness of confession. If D prevails on appeal, guilty plea can be withdrawn. Slow plea: DA and D stipulate to existence of some facts, then go forward w/abbreviated bench trial to resolve remaining legal and factual issues.

Why bargain? a. Why Would D Plead Guilty Even if Nothing Gained & What Can D Gain from Bargaining? 1) Willing to take responsibility. 2) Financial restraints. 3) Reduction or change in type of charges. 4) Plea discount at sentencing. 5) Emotional and other impacts of trial on D (reputation). 6) Keep judge (who will be making sentencing decision) from hearing details of case. 7) Collateral consequences (in other cases). 8) Get credit for time served. 9) Sexual offenders can avoid stigma. What Can Prosecution Gain from Bargaining? 1) Expeditious resolution (better for victims and law enforcement generally). 2) Avoid trial (good b/c have vulnerable witnesses, not a strong case) 3) Use resource elsewhere - efficiency. 4) Strong interest in finality 5) Get D to cooperate against others. Illegitimate Factors Pressuring Parties to Bargain: 1) Financial incentive of D counsel: incentive to move cases. 2) Prosecutorial pressure b/c he believes guilty Ds do not deserve trial. 3) Judges are pressured to clear up their dockets.

b.

c.

6. 7.

Plea Bargaining Now Accepted Part of the System (was not always this way) Plea Bargains Are Binding: a. Rule: once DA makes plea bargain and D accepts, either by entering guilty plea or detrimentally relying on it, plea bargain becomes binding and enforceable under constitutional law [see Ex Parte Hon. Orson Johnson (Ala. 1995)]. b. Rationale: 1) Due Process Clause mandates enforcement of the bargain. 2) K theory. 3) Bad public policy to allow DA to rescind plea bargains once D accepts it. Conditional Plea Agreements Are Permitted. Waiver of Appeal a. Majority Federal and State Rule: D may explicitly waive right to appeal a conviction as a condition of a plea agreement [see People v. Seaberg (N.Y. 1989)]. 1) Rationale: bargain process is very important to justice system – courts will not tamper with bargaining process. 2) Minority view: public policy forbids prosecutors from insulating themselves from review. 3) Better if waiver is explicit. b. Non-Waivable Claims 1) D can‘t waive right to speedy trial. 2) D cannot agree to a sentence greater than statutory max. c. What can D argue to make the right to appeal unwaivable: 1) Open Door Theory: keep scrutiny by appellate courts over fairness of proceedings.

8. 9.

44

2)

d. e.

If this does not work, D can also use ineffective assistance of counsel: a) Incompetence: b) Prejudice: but for counsel‘s error it is probable that D would have insisted on going to trial or would have gotten better deal. Waiver as Distinguished from Forfeiture of Claims Impact of Silence on Waiver: some courts. say silence about right to appeal in a plea bargain means waiver of that right, some don‘t.

10. Get Proof of the Plea Agreement on the Record. 11. See Hypo Handout. B. Categorical Restrictions on Bargaining: 1. Legislative Limits on Plea Bargaining: a. b. c. Risks of not allowing plea bargaining = clog courts, judges could give Ds incentives to plead guilty. Hard to come up with statute that sets meaningful limits on plea bargaining and is enforceable. Examples: 1) CA: plea bargains not allowed for certain crimes (27 listed) – current trend. a) But loophole existed b/c limit only applied at Sup. Court level, so bargains were struck at lower court level before prelim. hearing, before case could be bound over to Sup. Court exceptions swallowed up the rule. b) Typical approach, carving out areas where no plea bargains allowed. c) Usually more in policy than codified in statute. 2) New York: ―Price limit" approach. a) Can only give certain size reduction for crimes, ex., only reduce A felonies to C at the most, etc. b) Commonly found in policies and statutes. 3) Wash: lists factors to consider in plea bargaining - probably not a real limit.

2.

Judicial Rules: a. Judges’ Chances to Review Plea Bargain in AZ: 1) When presented. 2) After presentence report. a) D has to chose whether to take plea and take risk of judge‘s discretionary sentence or withdrawal plea. Stipulated Sentencing Agreements [see F.R. Crim. P. 11(e)(1)(C)]: 1) Disfavored by Judges: judges usually against b/c further restricts their discretion in an area where they have expertise. 2) Favored by D Counsel and Prosecution: D counsel (helps advise client) and prosecution (easier) like these. 3) Judge‘s Power: judge may reject plea altogether or take stipulated sentence. 4) No Per Se Rejections of Stipulated Sentences: judges cannot have per se rule rejecting stipulated sentence pleas w/o individual consideration of the stipulated sentence for the D on the facts of the case [see Espinoza v. Hon Gregory Martin (Ariz 1995): a) ??? Loophole: judge not bound by stipulated sentence if presentence report reveals inadequacy of those provisions (pretty restrictive rule for judge b/c only way he can depart from stipulated sentence is if PSR comes back w/ a surprise). Recommended Sentence Agreements (more common):

b.

c.

45

1) d. 3.

Judge‘s Power: judge may reject sentence but take the plea and impose his own sentence; judge not bound by sentence recommendation.

Mandatory minimum laws have stolen judge’s sentencing discretion.

Prosecutorial Guidelines: a. Written Policies (rare): 1) Usually at the local level (not the state level) [see State v. Lagares (NJ 1992) (not typical b/c most written guidelines are on local level and NOT state level)]. 2) Problem 7-3: shows some policies actually adopted after this case. Says the enhanced term should be the norm rather than the exception, then gives bases for waiving the enhanced term (D pleaded guilty to earlier charge w/o counsel; to ensure D ‘s cooperation; D only has extremely remote prior convictions) 3) Priority Crimes: office policies often restrict power of individual prosecutor to negotiate terms for a select group of high-priority crimes. 4) Uniform guidelines usually less lenient. 5) Very hard to have meaningful guidelines Internal Review Systems: 1) Require line prosecutor to obtain approval from supervisor. 2) Improve quality of decision-making b/c uniformity, more experience, accountability.

b.

4.

Victim Consultation: a. b. Why Would V Accept Plea Agreement? 1) Not want trial. Why Would V NOT Accept Plea Agreement? 1) No resource concerns. 2) Retaliation. Extent to Which Prosecution Can Consider V’s Wishes: 1) 2) Rule: V‘s wishes cannot be dispositive factor in prosecutor‘s decision to agree or not agree to plea agreement but he can consider it [see State v. McDonnell (Or 1992)]. a) Rationale: abdication of prosecutor‘s discretion. Problems of Proof: a) Prosecution will never say V‘s wishes were dispositive. b) D will never argue this is V‘s wishes favor D.

c.

d.

Notice to V of Plea Agreement: 1) Majority: DA must, when feasible, INFORM victim that he plans to recommend that court accept D ‘s guilty plea based on PB - also must tell victim of time and place for plea hearing. 2) Minority: DA must CONSULT w/ victim before recommending PB.

C. Validity of Individual Plea Bargains: 1. Requirements for Guilty Plea: a. Knowing waiver of trial rights b. Voluntary waiver c. Factual basis to support charge(s) D is pleading guilty to Basis of D‘s Challenges to Plea Agreement: a. Breach of Plea Agreement

2.

46

b. c. 3.

Ineffective Assistance of Counsel. Constitutional Defect.

Lack of Knowledge: a. Federal Rule: 1) Guilty pleas not constitutionally valid unless record affirmatively shows that D s understand privilege against self-incrimination, right to trial by jury, and right to confront accusers [see Boykin v. Alabama (1969). 2) Fed Rule Crim Pro: a) 11(c): judge has to inform D of certain things in compliance w/Boykin. b) 11(d): forces disclosure of PB. c) 11(f): govt must show factual basis for plea (usually, AUSA/prosecutor gives it in narrative, summary version of facts). State Rule: 1) 2) D must know he has 2 potential paths – trial or plea. Judge Must Give Plea Colloquy to Inform D of: a) Nature of charge (D must understand what crime is and what proof is necessary to establish) b) What rights are being waived and the consequences of waiver. (1) Judge must inform D of direct consequences (definite, immediate, and largely automatic) but not collateral consequences (e.g., sex-offender registration, possible deportation for resident aliens after conviction). [see State v. Ross (Wash 1996) (mandatory community placement is direct consequence of guilty plea, and failure to so inform D renders that plea invalid)]. (2) If a collateral consequence would have a significant effect on D‘s decision to plea, he can use ineffective assistance of counsel. c) Sentencing implications. D should answer judge‘s questions: if D counsel answers judge‘s questions from plea colloquy, potential for appeal later b/c D may not understand. Ultimatums and Hard Bargaining Are Allowed [see State v. LaForest (N.H. 1995) (holding that prosecution‘s condition of offer was not mandatory and D could have pursued discovery w/ or w/o benefit of that bargain, so D ‘s later guilty plea was knowing and voluntary)]: a) Conditions are not mandatory but part of the give and take of bargaining. b) Prosecution can drive a hard bargain. c) Key idea here is relationship b/w discovery and PB - must know case before can enter PB but D is often rushed to plead by government and D counsel. d) Typical approach: such conditions are but one factor to consider whether plea was knowing and voluntary.

b.

3) 4)

4.

Involuntary Pleas: a. Ways to Make a Plea Involuntary 1) Promises 2) Threats 3) Mental Problems 4) Drug Use Alford Pleas:

b.

47

1)

2)

3) 4) 5) 6) c.

Federal Rule: an innocent claim does not render a guilty plea involuntary [see North Carolina v. Alford (US 1970)]. a) No constitutional error in accepting guilty plea by D where there is strong factual basis for plea and D clearly expresses desire to enter plea despite his professed belief in his own innocence. b) States Approach: (1) Majority of states allow Alford pleas so long as prosecution establishes a strong factual basis to support the conviction (but it‘s not mandatory that they accept them). (2) Minority forbid acceptance of Alford pleas. Rationale: a) D may have legitimate and strategic reasons for waiver rights (e.g., D may believe it is in his best interest w/o admitting guilty). b) Analogy to nolo contendere pleas. Current Live Question: does trial judge have discretion to reject an Alford plea? Trial judges should carefully evaluate D‘s mental stability (beyond competence) in these scenarios. D counsel should do careful independent investigation + create good record of D‘s decision to plead guilty (no threats or external forces). Courts usually look for a factual basis.

An Offer You Can’t Refuse – Connected Pleas/Package Deals: 1) Federal Rule: 2) State Rule: Package deal plea not a problem to accept so long as plea is voluntarily, knowingly, and intelligently made [see People v. Fiumefreddo (N.Y. 1993)]. 3) Test = totality of circumstances (looking more at the bargaining process). a) Factors: (1) Prosecutor‘s bad faith. (2) Closeness to set sentencing range. 4) Best to get D‘s statement on record of reason why D agreed to the plea bargain. a) Rationale: create bar to appeal (not to ensure D was not influenced) b) Problems: D often does not know why he agreed at this time – he will not have any thoughts of appeal or withdrawal at this time. 5) Shows prosecution can put a lot of pressure on D: a) B/c courts place such a high value on plea bargains as part of system, prosecution can attach negative consequences to the D‘s exercise of constitutional rights even though a statute cannot. 6) Watch out for prosecutorial vindictiveness if D decides to go to trial: Judicial Overinvolvement: 1) ??? Federal Rule: usually harmless error. 2) State Rule: judicial involvement is generally not allowed but the rules differ from jurisdiction to jurisdiction. a) Standard: if trial judge‘s involvement in plea negotiations casts significant doubt on voluntariness of D ‘s plea, D can withdraw plea [see State v. Wakefield (Wash. 1996)]. b) Minority rule: some states allow judge to get involved at the parties‘ request, listen to proposed deals, and give them an idea where D could expect to get sentenced. But it‘s at the request of the parties, not upon the judge‘s own initiative. 3) Why do courts create barriers to judicial involvement in plea bargain process? a) Powerful influence on D. b) Gets to impose sentence. c) Can impact trial if thought D should have plead guilt or accepted plea agreement. 4) Ways judge can interfere: a) Advise D on whether to accept or reject plea agreement. b) Make promise as to sentence. 5) Tough theory for D to argue that plea is involuntary b/c of judicial involvement.

d.

48

6) 7)

D counsel should know rules and judge‘s particular practice. Remedy = usually withdrawal of plea (and not specific performance b/c that would sanction illegality of judicial involvement).

D. Making and Breaking Bargains: 1. Generally: a. b. Plea Bargaining Analogous to K Law: 1) Only difference: PBs require approval of 3d party - the state - to become enforceable. Enforcement: when plea rests in any significant degree on promise or agreement of DA, so that it can be said to be part of inducement or consideration, such promise must be fulfilled [see Santobello v. New York (1971)]. When Agreement is Binding: due process clause guarantees enforcement of PB, but binding plea doesn‘t exist until entered and accepted by court - until then, PB is "mere executory agreement" w/o "constitutional significance" [see Mabry v. Johnson (1984)]. Prosecution can withdrawal any time before formal plea accepted by court. 1) Some states reject that and hold govt to bargain. 2) In most court, PB may also be binding if, after agreement but before entering formal guilty plea, D acts in detrimental reliance on bargain. D can withdrawal any time before formal plea accepted by court.

c.

d.

e. 2.

Breaking Bargains: a. D’s Challenge to Plea Agreements 1) Before sentencing: D must show any fair and just reason for withdrawal. 2) After sentencing: D must show reversible defect (much harder – strong reasons against allowing withdrawal) ??? Federal Rule: State Rules: 1) Rule: PB may be vacated where material and substantial breach of PB has been proved [see State v. Rivest (Wis. 1982)]. 2) Burden on party trying to get PB vacated. 3) Perjury is a per se material and substantial breach 4) Evidentiary Hearing: 5) Common Example are Agreements for Full Cooperation by D: Prosecution has HUGE LEVERAGE in Plea Agreements 1) What can prosecution do when it no longer likes the plea agreement? Can say D has breached, can add new conditions – although this might not be ethical, difficult for D to prove or challenge. Continuing Job for D Counsel: has to make sure D does not breach.

b. c.

d.

e. 3.

Remedies for Broken Bargains: a. Remedy Types: 1) Withdrawal of Plea 2) Specific Performance

49

b.

Who gets to select the remedy? 1) Courts are split. 2) Factors to Consider: a) Who broke the bargain. b) Whether violation was deliberate or inadvertent. c) Whether circumstances have changed b/w entry of plea and sentencing time. d) Whether additional information has been obtained that, if not considered, would put court in inappropriate position. 3) State v. Parker (Md. 1994): b/c specific enforcement of the PB is illegal, D has choice to leave guilty plea in place and when paroled from fed. sentence, be returned to state DOC to serve balance of state sentence, or D may withdraw guilty plea, knowing state is free to try him on original charges or negotiate another PB. a) Maybe trial judge could enter new judgment of guilty, attach conditions to keep D from being reunited w/his "buddies." b) State upset b/c D getting too good a deal from PB. Parties Should do a Better Job Planning for Breach.

c.

E. Review – Looking at plea bargaining from three perspectives: State Yea: High conviction rates Certainty Resource savings Incentive for D ‘s coop

Nay:

Soft public image Too little punishment Controlling line DAs Defendant Yea: Certainty D has something to offer Opens options Discount sentence Nay: Punished for exercising rights

Public Yea: Certainty Resource savings Nay: Judges‘ roles diminished Trivializes liberty choices Too little punishment No uniformity

VIII. DECISIONMAKERS AT TRIAL: Summary: A. Judge or Jury?

50

1.

Availability of Jury Trial: a. Generally: 1) Why do Ds want jury trial? Easier to evoke sympathy. 2) Why do judges resist? a) If charged offense involves political issue that can be influenced by political views of jury. b) Jury selection is difficult. 3) Why does government resist? a) Costs are one reason govt doesn‘t favor jury trials. b) Jury selection is difficult. c) Harder to convict with jury. 4) Two views on whether right to jury trial is essential. 5) Constitutional Basis: 6A and due process guarantee D is tried by impartial jury [see Duncan v. Louisiana (1968)]. 6) History: a) Initially, courts required 12 jurors and unanimity – now these standards are relaxed. b) Primary emphasis on the distinction b/w a petty and non-petty offense by looking to max authorized incarceration period [see Blanton v. City of North Las Vegas (1989)]. 7) Debate on necessity for jury trial today: do original reasons for criminal jury remain true today or would some other form be more appropriate? Federal Rules: 1) Rule: D entitled to jury trial only where POTENTIAL sentence is 6+ months in prison (non-petty crime). 2) Rebuttable Presumption a) Offenses for which the max potential period of incarceration is 6 months or less are presumptively petty [see United States v. Nachtigal (1993)]. b) D must try to show that max. period of incarceration, along with other penalties such as fines, are so severe that legislature considered offense non-petty. State Rules Vary: 1) Majority Rule: D entitled to jury trial only where ACTUAL sentence is 6+ months in prison (non-petty crime). a) Disagree with federal view of what constitutes a petty crime. b) This is same standard as federal and state standard for right to counsel. 2) Multi-factor Approach: a) Factors: (1) Max penalty (2) Nature of offense (3) C/L background (4) Society‘s view of the offense (5) Consequences of conviction b) Rationale: liberty can still be constrained even if judge only issues probation and not jail time. c) See State v. Bowers (S.D. 1993): (1) App. ct. modification of sentence leaving probation intact but removing underlying threat of one week in jail OK b/c no potential for incarceration. (2) S.D. rule: State v. Wikle said jury trial right existed if potential for any amount of jail time, modified by State v. Auen which said judge could deny jury trial if he assured D there would be no jail time if convicted. 3) MD Approach: D has right to jury trial any time D is subject to any imprisonment or there is constitutional right to a jury trial for that offense. Statutory Rights to Jury Trial: common to find state statutes that extend the right to jury trial to broader range of cases than federal or state constitution requires.

b.

c.

d.

51

e. f.

Prosecution Has Ability to Manipulate D’s Access to Jury by his Charging Decision – this is allowed. Combining Petty Offenses: 1) Federal rule: you cannot combine to trigger right to jury trial (look at all offenses individually, NOT cumulatively). 2) State rules: vary 3) Criminal contempt trials are confusing.

2.

Waiver of Jury Trial: a. Generally: 1) Generally, juries are much more likely to try violent offenses, and judges are more likely to try drug offenses. 2) Why would D want to waive right to jury trial? a) Technical defense. b) Judges acquit more. c) Jury would not relate b/c D is unsympathetic. d) Judge not as easily shocked. e) Choose the known (judge) over the unknown (jury). 3) Why would judge want to have jury trial? a) If elected, does not want to make unpopular decision. b) Nuisance – bench trial requires more energy from judge – has to pay attention to evidence. Federal Rule 1) Rules: no constitutional right to non-jury trial - D must get prosecution‘s and court‘s approval to dispense w/jury trial right [see Patton v. United States (1930), Singer v. United States (1965), F.R. Crim. P. 23(a)]. 2) Standard of review of judge‘s decision to decline waiver = abuse of discretion: a) 3 considerations when reviewing D‘s request to waive: (1) valid waiver (knowing, intelligent and voluntary); AND (2) is waiver by D in good faith (or attempt to gain impermissible advantage); AND (3) give statement of reasons, considering all the factors as to why judge decided to grant or deny the request. (a) Anticipated duration and complexity of prosecution‘s evidence (b) Amenability of issues to jury resolution (c) Existence of highly charge atmosphere (d) Presence of particularly technical matters (e) Anticipated need for numerous rulings. b) Guiding principle: judge cannot refuse waiver if it results in UNFAIR trial for D. State Rules: 1) Rule: no constitutional right to non-jury trial. a) See State v. Dunne (N.J. 1991) (no unilateral right to non-jury trial and trial court didn‘t abuse discretion in determining that issues should be decided by jury – D wanted bench trial b/c defense was insanity w/homosexual fantasies, feared it would repulse jurors). b) Rationale for Not Allow Waiver - whose right is it? (1) If it belongs to D, why can‘t he waive it when he wants? (2) Dunne majority seems to say this is a public right. (3) Federal constitution says it‘s right of accused. (4) Historically, the people administer the laws, not govt officials. (5) But no real textual support for having public have a right in jury trial, though in the past the jury was used as a way of educating the public about its govt.

b.

c.

52

2) 3) d.

Judge‘s Role: almost all states allow D to waive right to jury trial but almost as many also allow judge to DENY D‘s request for bench trial. 10 states give D unilateral right to select bench over jury trial.

Problem 8-1: Dawkins says judges are more reliable than juries – suggests having 2 judges - do we agree? 1) This option obviously not viable b/c of fed. const., but may help us explain what we expect from judges and juries. 2) How do we tell if juries doing good job? Our agreement w/outcome (not a good method, subjective) and judges‘ agreement w/outcome (fairly high). 3) Disadvantages of this option: lose observers going from 12 to 2; no deliberations; judges too different from everyday people like D.

3.

Other Fact Finders in Other Legal Systems: a. Law-trained judge b. Private judges c. Multi-member panels.

B. Selection of Jurors: 1. Generally: a. Much variety in systems (who asks questions, length, etc). b. D counsel and prosecutor used to use voir dire as way to introduce case, build relationship with jury. c. Competing tensions at trial: D wants juror struck, judge wants to get jury seated to start trial. d. What can judge do to avoid this next time? Not-so-leading questions, cut off questioning sooner. e. Judge can put lots of pressure on jurors. f. Dialogue b/w judge and individual juror can educate other jurors. Dismissal for Cause: a. b. c. Always an attorney’s first choice. No limit on how many. Basis: Juror cannot participate appropriately in the trial. 1) Usually occurs b/c juror can‘t meet basic qualifications (e.g., illiterate), or biased, or know parties. 2) Factors: a) Bias b) Illiterate c) Residency qualifications d) Witness e) Indictment f) Insane g) Health h) Served on GJ for this case 3) Prosecutor also have special for cause categories that he can use (e.g., death penalty). 4) D counsel and prosecutor can ignore any of these factors except past convictions. D usually at voir dire – why? 1) Want jury to see D, to personalize him, develop relationship. 2) What D to have say in jury selection. D’s Challenges: 1) Juror must sit for a D to have an appealable issue.

2.

d.

e.

53

2)

Abuse of discretion – see State v. Hightower (N.C. 1992) (Judge abused discretion in not dismissing juror for cause after answers to questions showed he would have trouble following law if D didn‘t testify).

f.

Effect of Pretrial Publicity: 1) Cannot only impanel people who have not heard about case b/c that would be an ODD group. 2) ABA Standards for what judge should do: a) Individualized jury questioning (otherwise, jurors would learn more from other jurors‘ answers). b) Look beyond juror‘s statements to objective factors. Juror Reluctance to Serve: judge has to draw a fine line – usually end up with people who do not want to serve (even though that might mean they are biased against D). Special For Cause Challenges - Death Qualified Juries: 1) More likely to convict. 2) Might effect prosecutor‘s charging decisions – will chose crime where he can seek death penalty so as to higher chance of conviction.

g. h.

3.

Preemptory Challenges: a. Generally: 1) Definition: otherwise qualified jurors can be disqualified for almost any reason. 2) Two Principal Functions of Preemptories: a) Provides margin of protection for challenges for cause, eliminating bias those challenges don‘t or can‘t get to. b) Provides the parties w/ opportunity to participate in construction of decisionmaking body, enlisting their confidence in its decision. 3) Operation Varies: a) States usually allow specific number of preemptories, ranging from 2 (less serious cases) to 20 (more serious cases, like capital murder). b) Each side must exercise strikes without knowing who other side struck. 4) Attorney thought process for exercising preemptory challenges is based on every common stereotype. 5) Appeal: to preserve challenge about jury selection on appeal, party must exhaust all preemptories. Federal Rule: 1) Rule: Equal Protection Clause forbids preemptory challenges based on race or gender [see Batson v. Kentucky (1986)]. a) 3 Step Process for Bring Batson Claim (1) D must show facts or circumstances that raise an inference that the exclusion of potential jurors was based on race or gender. (2) ??? Burden shifts to prosecutor to show race-neutral explanation for the striking of those jurors (reason need not be reasonable). (3) Judge determines whether prosecutor‘s explanation was genuine or merely pretext for purposeful discrimination. b) Problems: (1) Very easy for prosecutor to come up with neutral explanation – only has to be based on the case in some way: many reasons given by DA are generally accepted by trial courts and receive little examination on appellate review. (2) In order to find for D, judge must find prosecution is lying (3) D actually has to show purposeful discrimination. c) Pre-Batson Approach:

b.

54

(1) Preemptories could be exercised w/ no explanation required - only if prosecutors engaged in pattern of preemptories across several cases that revealed racial discrimination would review of those preemptories be allowed [see Strauder v. West Virginia (1880)]. (2) Reaffirms Swain v. Alabama (1965) but lessens burden on D - under Swain, D had to show pattern over several cases, not just your case - now S.Ct. says you can use pattern from just your case. 2) 3) Standard of Review on Appeal = Clear Error – Very Hard for D: Effect on Attorney‘s Thought Process a) Before: based on stereotypes. b) After: DAs have to start thinking about why juror was struck, develop list of neutral reasons, lessens case‘s impact perhaps. Extension of Rule: any party in any suit can raise a Batson claim. a) No same race requirement. b) Prosecution and D counsel can raise. c) Extended to civil setting d) Should it extend to Religion – exception for Jehovah‘s Witnesses. e) Change in Focus: under Batson, focus was on D‘s equal protection rights - now focus is on JURORS‘ equal protection rights. Changes at Voir Dire: a) Trial court can request reasons sua sponte for preemptories. b) Critical question is whether you can convince trial judge on spot- if you do, less likely to be overturned on appeal b/c of different standard (abuse of discretion). Possible Alternative Grounds Under a 6A/14A Cross Section Claim –– Usually Rejected: a) Selection process is designed to ensure cross section of society in jury pool. b) Most courts find that this does not guarantee that D will actually get a jury that mirrors society. c) 6A does not directly say anything about preemptory challenges but is always lurking in the background

4)

5)

6)

c.

State Rules: 1) See Lingo v. State (Ga. 1995) (trial ct.‘s findings that DA‘s reasons for peremptories were racially neutral (struck all black jurors) and that DA was able to overcome PFC of discrimination were not abuse of discretion). a) Looks like DA was thinking ahead - give at least two reasons given for every strike. b) Dissent: some racially neutral reasons weren‘t neutrally applied, reasons were OK if given by whites but not OK if given by blacks. Also using "hostile" as proxy for race. Arguments for Getting Rid of Preemptory Challenges: 1) See Marshall‘s dissent in Batson: is Batson killing peremptories anyway? 2) Not constitutionally required, but could be done legislatively. 3) Effect of Extinguish Preemptories: shift to for-cause challenges. 4) Argument that Preemptories Are Important: a) Enhances adversarial system. b) Jury selection very important. c) Allows D a part in process. d) Society has more faith in outcome. Remedies - Unclear:

d.

e.

55

1)

2) 4.

At Trial: a) Reinstate juror that was improperly stricken (however this may now be a biased juror). b) Empanel entirely new jury (cost concerns). On Appeal: reversal and new trial.

Challenging the Judge: a. Most jurisdictions typically allow parties to challenge judge for cause. b. In addition, about 20 states allow Ds to have one automatic strike to trial judge.

C. Jury Deliberations: 1. Generally: a. Variety of rules on written copy of jury instructions, note taking, etc – arguments against written instructions and note taking. b. Systems relies on jury’s collective memory. c. When jury has a concern, judges should confer with ALL the parties before responding. d. Judges often rely on jury charges upheld by appellate courts but this does NOT necessarily mean they are good charges. e. Hung jury only occurs 5%-15% of the time, depending on studies. Instructions to Deadlocked Juries: a. Judge’s Role: 1) Figure out if jury is truly deadlocked. a) If jury does not ask specific questions, safe to assume deadlock. b) Other indicators 2) 3) 4) 5) Determine cause of deadlock b/c different causes require different remedies. Judge‘s inquiries about jury‘s numerical breakdown are PER SE error - in some jurisdiction, this is only one factor to be considered. Some states allow judge to give jury statute. Determine which approach to use. a) Bailey Approach b) Allen Approach c) ABA

2.

b. c.

NY Approach: can give written copies of instruction to jury. Bailey (full reread) Charge: 1) Once judge determines deadlock, he must call jury back into open court in presence of ALL parties and their counsel, and reread entire jury instruction given to them prior to deliberations, w/o emphasis on any of them and w/o further comment [see Bailey v. State (Ind. 1996)]. 2) This is not what jury wants BUT judge will not get more involved b/c: a) he risks unduly influences the jury and b) making the cases susceptible to appeal. Allen (“dynamite" or "hammer") Charge: 1) Basically addressed to the holdouts, trying to move them to unanimous decision one way or the other. 2) Federal courts allow Allen charge. 3) About half the states disapprove of dynamite charges, in whole or in part.

d.

56

4)

Some courts have limited Allen instruction through procedural devices, such as preventing judges from giving the instruction too early during deliberations or from giving it more than once.

e.

ABA Standards: 1) Improved b/c: a) Better phrasing. b) No antiquated language. c) Does not lean as hard on minority jurors. 2) Goal: keep alternating b/w juror‘s obligation to consult and to decide case for himself. Likely Effect of Jury Instruction (especially a Bailey or Allen charge): is to make minority jurors capitulate. 1) Thus it is difficult for either side to assess whether to seek such a charge unless they know where the jury is leaning (which they might from the bailiff). 2) Confused juries like to convict. 2 Common Lesser-Included Offense Instructions. 1) Acquittal first: judge tells jury to reach unanimous decision to acquit on most serious charge before moving on to consider conviction for lesser offense. 2) Unable to agree/reasonable efforts: permits jury to consider lesser-included offenses if, after reasonable efforts, jury cannot agree on verdict on more serious offense. Non-Unanimous Verdicts: 1) Federal Rule: Can have less than unanimous (but not less than 5-1). 2) In England, judge can change voting rules. The idea is to give jury shot at unanimity, then modify as needed. But does this work when people know the rules can change? Trying for the best of both worlds. Special Verdicts 1) Not often used. 2) Courts have struck down convictions based on them. 3) 1st Cir said it could coerce jurors otherwise willing to acquit. [United States v. Spock (1969)]. Inconsistent Verdicts: 1) Rule: inconsistent verdicts stand for both jury and bench trials [see Dunn v. US (US 1932)]. 2) What might explain inconsistent verdicts: a) Leniency b) Total jury confusion c) Compromise b/w jurors. 3) Most state courts agree.

f.

g.

h.

i.

j.

3.

Jury Nullification: a. b. c. Arguments about jury nullification seem to assume that if juries knew they could nullify, they would - two studies cast doubt on that assumption. Jury has a great power in this tool. Fully-Informed Jury Association (FIJA) Handbook: 1) Available on Internet, handed out at courthouses 2) Should judges try to stop this? If it rises to level of jury tampering. 3) The Framers loved the jury, saw it as voice of the people. Held it in higher regard than even the legislature that passed the laws. Remember, only white male landowners could be on a jury then.

57

d. e. f. g.

Federal constitution doesn’t expressly bar it, some state constitutions do. Some states allow it. Real fights occur over what is permissible and what crosses line. Judge‘s Approach: 1) Most judges view nullification as lawlessness. 2) Most judges will not give an instruction on it. 3) Most do not allow D counsel to make such an argument to jury.

IX. WITNESSES AND PROOF: A. Burden of Proof: 1. 4 Fundamental Principles: a. Presumption of innocence: idea that person is not guilty of crime until state proves to factfinder that the person has committed criminal act w/requisite mental state. b. c. d. 2. Beyond a reasonable doubt now often considered to be mirror image of presumption of  innocence. Right to confront witnesses: D‘s right to challenge and test witnesses and other evidence. Privilege against self-incrimination: D cannot be forced to testify, either by threat of prison or by calling D ‘s silence to attention of factfinder.

Reasonable Doubt: a. Generally: 1) Standard of proof is all about error rates. a) Lower error rate shows demand for higher level of accuracy b/c individual rights at stake. 2) Have to balance b/w too much doubt and too exacting a standard of certainty. 3) Very important to tell jury about RD – to offer some guidance. 4) Historically, courts have not adequately informed juries. 5) There is increasing research on the subject. Federal & State Rule: constitution requires prosecution prove all elements of offense beyond RD. 1) No rule on whether court must give RD instruction or what it must contain. Different Approaches as to Whether and How to Instruct Jury on RD: 1) No instruction. 2) State pattern instructions. 3) Federal Jud Center RD Instruction on RD: a) Proof beyond RD is proof that leaves juror firmly convinced of D ‘s guilt. b) Also mentions that std. is higher than in civil cases. 4) Uphold/approve instruction BUT disfavor its use. 5) ―Hesitate to Act‖ Description: wrong frame of reference – federal courts reject. 6) Most courts prohibit quantification‘s of RD (percentages). Problematic Language:

b.

c.

d.

58

1) 2) 3) e.

Winegeart v. State (Ind. 1996)  Instruction here w/questionable language (implying guilty based on something less than RD) eventually OK‘ed, but ct. endorses jury instruction on RD proposed by Fed. Jud. Ctr. Moral certainty: S CT say this allows jury to find guilt at < RD [see Cage v. Louisiana (1990)] but later approved similar language in Victor v. Nebraska (1994)/Sandoval v. California (1994) b/c of totality of circumstances. "abiding conviction" and "no speculation or conjecture" sees okay [see Victor v. Nebraska (1994)].

Appeal: 1) Generally, courts look at whole jury instruction, not individual phrases or words to determine whether RD was conveyed. 2) D must show there is reasonable likelihood that jury misconstrued meaning of reasonable doubt given in the instructions. Effect of Negative or Positive Instructions: Ds favor positive instruction Always Difficult to Get Lower Court to Use Unapproved RD Instruction Alternative Mechanisms for Explain RD 1) Should we use numbers? Might be simpler guidelines, but how do you quantify evid.? Cts. don‘t favor numbers, quick way for judges to get reversed. Numbers tell you about the end product, but not about the raw materials you‘re working with. Usually No Need for Separate Presumption of Innocence Instruction. Guilty Clothing Rules

f. g. h.

i. j.

B. Confrontation of Witnesses: 1. The Value of Confrontation: a. Generally: 1) Constitutional Basis: 6A guarantees right to confront witnesses – incorporated to states via 14A. 2) Linchpin of adversarial US justice system - expect D counsel to test the evidence. 3) Purpose: a) Insure reliability of witnesses b) Expose witness to probative effects of cross-examination c) Permit trier of fact to weigh demeanor of witness to determine credibility. 4) More concern for child witnesses. a) Greater potential for psychological damage. b) Greater potential for intimidation. c) See Ind‘s approaches: closed circuit TV or videotape. d) Majority Rule: trial court must make case specific finding that witness would suffer extreme trauma during traditional testifying that would prevent witness from reasonably communicating. 5) Note differences b/w federal and state constitutional rights in this area. 6) Modern technology gives courts ability to push the limits of the confrontation clause. Federal Rules: 1) Right to Face-Face Encounter with Witnesses: a) Preference for face-to-face confrontation can be overcome when: (1) Preventing such confrontation serve important public purpose; AND

b.

59

b) c) d) 2)

(2) Reliability of witness‘ testimony is otherwise assured [see Md v. Craig (US 1990)]. Allowed Alternatives: (1) Closed circuit TV. (2) Audio hook-up. D must still have ability to cross-examine [see Maryland v. Craig (1990) (crossexam is heart of confrontation right). Compare to Indiana‘s state constitution.

Right to Be Physically Present: generally D has right to be physically present during course of trial. a) Other Proceedings: both federal and state courts say D has right to be present at every stage of trial but that some pretrial events do not require D‘s presence. b) Waiver: may be waived voluntarily or by improper conduct. Right to Identify Prosecution Witnesses: witnesses who testify against D usually have to reveal name and address. a) Trial court can restrict x-exam on witnesses‘ name and address if there is adequate showing that safety of witness is at risk. b) Compare to Other Countries VERY DIFFERENT VIEWS on the Value of Confrontation – Anonymous Witness: (1) Place more emphasis on witness‘ rights than D‘s rights. (2) Investigating judge is very different role. (3) See Doorson v. Netherlands (Eur. Ct. H.R. 1996) (holding that there was no violation of treaty w/anonymous witnesses used here b/c court balanced need for protection of witnesses against D‘s right to confront those witnesses). (a) This cuts down on D‘s participation in x-exam, but that‘s not bad if safeguards are in place. (b) However, it‘s tough to impeach someone when you don‘t know who they are. (c) Would this work in U.S.? probably not - doubtful in adversarial system D has Right to Cross-Examine:

3)

4) c.

State Rules: 1) Right to Face-Face Encounter with Witnesses a) Higher Than Federal Standard: (1) Require face to face confrontation – both witness and D have to be able to see each other (b/c language in state constitution is different than federal constitution) [seeBrady v. State (Ind. 1991)]. (2) Closed-circuit, two-way monitors where victim can see D and vice versa might be OK. (3) Need individualized finding that THIS witness will be traumatized by incourt testimony. b) Most states follow federal rule.

2.

Unavailable Witnesses: a. Generally: 1) Confessions are attention getting evidence. 2) Court assumes that limiting instructions work. 3) Prosecutor is probably not consciously trying to violate D‘s right to confrontation. 4) Huge risk of misuse and spillover in these cases. 5) Very hard for judge to assess impact of jury instructions and confessions before trial has begun.

60

b.

General Federal Rule on Hearsay Statements By Unavailable Witnesses: 1) Prosecution Can Introduce statements by out-of-court witnesses but have to show: a) Unavailability AND b) Firmly rooted hearsay exception OR indicia of reliability. 2) Most states follow. 3) This test will NOT apply when there is a Bruton Problem. Federal Rule on Out of Court Statements by Co-D: 1) 2) Scenario: joint trial and one D‘s confession is admitted as evidence in that D‘s trial. Federal Rule: confessions of co-D cannot be used at joint trials when the confessions incriminate the other D [see Bruton v. US. a) If confessions is not facially incriminating, court may allow it in depend on whether limiting instruction will work. Standard: given this particular redaction, is it likely enough that jury will follow judge‘s limiting instructions? Limitations of Rule: a) Harmless error b) Deletion of reference c) D testifies d) Admitted for limited purpose Judge‘s 3 Option in Bruton Scenario: a) Grant separate trials (there are practical and policy reasons against doing this). b) Hold joint trial but exclude the confession statement. c) Hold joint trial with redacted confession statement and limiting instruction. (1) Purpose of redaction is to make limiting instruction sufficient. Why the different outcomes in Burton and Richards and Gray? a) Bruton: given the facts, court found it was highly UNLIKELY that jury would follow limiting instruction. b) Richardson v. Marsh (US 1987): given the facts, court found it was highly LIKELY that jury would follow limiting instruction. (1) When redacted confession is not facially discriminatory (need other evidence to connect it), then limiting instruction will probably be effective. (2) D worried about contextual link, but S CT said no problem if only the context is providing a link to D . c) State v. Gray (Md. 1997): given the facts, court found it was highly UNLIKELY that jury would follow limiting instruction States‘ Approach: a) Two main approaches: (1) Contextual or evidentiary linkage: if confession tends to inculpate D in light of other evidence, D ‘s 6A right to confrontation is denied. (2) Facial implication: if D ‘s name replaced by neutral pronoun and it doesn‘t otherwise implicate D , confession admissible against confessing co-D . b) Hybrid approach: question then is how big an inferential step jury must make to compel jury to link D to co-D ‘s statement. (1) Little = separate trial or statement stays out. (2) Big = statement comes in for limited purpose.

c.

3) 4)

5)

6)

7)

d.

Rules on Interlocking Confessions: 1) Rule: not automatically admitted b/c there are some constitutional problems.

61

2) 3) 4) 5)

Prosecutor‘s Argument: limiting instruction will be effective b/c there is sufficient evidence b/c each D confessed. D‘s Argument: differing levels of reliability. These arguments usually take place in a pretrial motion to sever. Government can make 2 arguments to try to get such confessions in: a) Harmless error b) Indicia of Reliability

C. Self-Incrimination Privilege at Trial: 1. Generally: a. Constitutional Basis: 5A b. Why would D want to testify? Carries more weight w/jury than other evid. c. Why would D not want to testify: 1) Criminal record & other types of character evidence. 2) Avoid cross examination. 3) Concern about unconvincing denial, b/c of nervousness. 4) Concern about perjury charges 5) Intelligence 6) Mental illness. Comments on Silence: a. b. Purpose of 5A is to prevent D from having to make a decision b/w give an incriminating statement, perjury, and being held in contempt. Federal Rule: 5A forbids either comment by prosecution on D ‘s silence or instructions by court that such silence is evidence of guilt [see Griffin v. California (US 1965)]. 1) Rationale: b/c it violates due process (not b/c it is compulsion) – jury will consider this anyway even without it expressly being pointed out. 2) Extended: any allusion to D‘s failure to testify is due process violation. a) Example: if judge or prosecutor says evidence is ―uncontradicted.‖ b) If judge or DA breathes a word about D ‘s refusal to testify, almost guaranteed to be error (whether it‘s harmless or not determines whether case will be reversed). 3) Remedy = curative instruction from judge 4) Griffin v. California (US 1965)]. a) Facts: CA statute allowed trial court instruction that D ‘s failure to testify or explain events could raise inference of guilty among jury. b) ??? Holding: CA statute = compulsion b/c it harms D, makes it more costly to exercise constitutional right. c) Reasoning: B/c people may not testify for all sorts of reasons, failure to testify cannot be used as evidence of D ‘s guilt [reaffirms idea of Wilson v. United States (US 1893)]. d) Stewart‘s dissent: physical coercion is all that counts, none here, so instruction was OK. Compare to Other Systems of Justice: 1) Murray v. United Kingdom (Eur. Ct. H.R. 1996): inferences about D ‘s silence don‘t violate fair trial provision of convention b/c DA has to prove PFC, so not based solely on D ‘s silence; inference only assesses strength of evid. already there. Pretrial Silence: 1) Federal Rule: a) Prosecution may NOT use D‘s pretrial silence after arrest and delivery of Miranda warning for any purpose.

2.

c.

d.

62

2) 3.

Prosecution may use D‘s pre-arrest silence as a basis for impeachment during D ‘s testimony at trial c) Prosecution may use D‘s post-arrest silence as a basis for impeachment during D ‘s testimony at trial if Miranda warnings were not given or D waived them. State Rules: most common to find state courts ruling that post-arrest unwarned silence cannot be used as impeachment material at trial.

b)

Availability of Defense Witnesses: a. b. Constitutional Basis: D has power of compulsory process under 6A and state analogs. Obstacles to Getting D Witnesses to Testify: 1) 5A privilege against self-incrimination. 2) Fear of perjury and will not testify. Great Disparity in Power of Prosecutor and D Witness with “Unclean Hands”: 1) If prosecutor wants D witness with unclean hands, he can give IMMUNITY prosecutor is the only one who can give immunity (b/c he knows resources and priorities): a) D cannot, he can just ask and hope (appeal to moral sense). b) Court cannot. 2) If I were advising a D witness with unclean hands and there was even the slightest chance of incrimination, I would say take the 5A. 3) Types of immunity: a) Transactional: no charge from anything arising from the transaction b) Use: Won‘t use that testimony or its fruits in later case against witness Threats of Criminal Charges Against D Witness: 1) Federal Rule: a) Judge or prosecutor can sometimes mention criminal charges. b) If court or prosecutor is too aggressive in signaling out D witnesses, court will find a violation of D‘s due process rights. c) Very difficult line drawing: unclear whether prosecutor judge have any duty to inform D witness of rights he is waiving by testifying. 2) State Rules: prosecutor can‘t threaten D ‘s witnesses just b/c they‘re testifying for D , violates due process [see State v. Goad (W.Va. 1987) (tracks federal rule of Webb v. Texas (1972))]. a) Unclear how far prosecution can go - if court or prosecutor is too aggressive in signaling out D witnesses, court will find a violation of D‘s due process rights (1) Examples: (a) If prosecutor says he will bring charges against D witness if the witness testifies, the court will find due process violation) (b) If prosecutor tells D witness that testimony could expose the witness to charges, court will probably NOT find due process violation.

c. d.

e.

f.

Commentary on Evidence: many states have rules prohibiting the judge from commenting on evidence or credibility of witness.

63

PART III. MEASURING PUNISHMENT AND REASSESSING GUILT:

X. SENTENCING: A. Who Sentences? 1. Generally: a. Move today is from indeterminate sentencing to guideline sentencing - chronology: 1) Start of 20th century: whatever statute said, D served t - determinate. 2) 1950s-1960s: movement to rehabilitate criminals - judge has range to sentence people, parole bd. decides actual release date - fitting the sentence to the person. 3) Now: back to determinate sentencing - less discretion for judges - more rules and laws to follow, but person does serve what judge says. Two main types of sentencing: 1) Indeterminate: kind of lawless in that no strict rules for judge - not talking about a lot of law in those sentences. 2) Determinate: statute sets range, expert commission sets details in between. Often have presumptive, mitigating, aggravating ranges. If judge departs from guidelines (as he can under fed.), sentencing now open to appeal, which hadn‘t been the case before. More law for attys. to argue about, even though still talking about same things.

b.

2.

Indeterminate Sentencing: a. Federal Rule: indeterminate sentencing schemes are constitutional – lots of room for judicial discretion and possible judicial discrimination (b/c judges are more favorable to Ds who look like them). 1) See Williams v. New York (US 1949): it is NOT a due process violation for sentencing judge to consider presentence report (not necessarily reliable info) even though much of it was hearsay and D hadn‘t been convicted of that conduct. a) Rationale = difference b/w guilt and sentencing phases (1) Whereas at trial, rules protect D from prejudice by jury, there is assumption that judge will not be prejudice (thus do not need rules). (2) Judge needs to see whole picture to effectively determine sentence. b) Two critical things happen at sentencing phase: (1) No rules of evidence. (2) Standard of proof becomes preponderance, and burden of proof in some instances shifts to D. c) What else could D ‘s lawyers have argued? (1) Unfair surprise b/c didn‘t see probation officer‘s report ahead of time (2) Asked for chance to contest report d) Williams is still good law. (1) No rules of evidence at sentencing, and informal procedure still exists for getting all relevant info to judge to fashion appropriate sentence. (2) However, now you do have to let D counsel see presentence report ahead of time b/c of due process concerns, esp. for capital cases. See United States v. North (D.D.C. 1989) a) Holding: Lt. Col. Oliver North gets three years, suspended for two years of probation, for conviction on 3 counts (out of 16), 1,200 hours of community service, $150 in special assessments, and $150,000 fine. D also can‘t hold office

2)

64

b) c)

d)

(convictions later overturned on technicality, which is why Ollie later ran for Senate seat and lost). Case is great chance to see in writing something that rarely gets written down. Govt memo on sentencing: (1) Just one conviction is good enough for sending D to prison. (2) He‘s arrogant, has no remorse, need to put him in jail to vindicate system. (3) General deterrence urged. (4) Somewhat personal attack of memo may be outgrowth of independent counsel‘s strange role, appointed to go after person and find wrongdoing, not like normal prosecutor. D‘s Memo on Sentencing: (1) Imprisonment would serve no purpose/goal (incapacitation, rehab, deterrence, reflect seriousness of offense). (2) D is a saint based on accomplishments in Vietnam, saves wounded soldiers, friend to dying kids, all American hero, patriot, etc.

b. c.

State Rules: similar Compare Focus of Determinate and Indeterminate Schemes: 1) Determinate focus is on offense. 2) Indeterminate focus is on individual.

B. Revisiting Pleas and Trials 1. Revisiting Proof at Trial: a. Generally: 1) Once government gains conviction, burden of proving new facts relevant to sentencing becomes easier. 2) Legislatures are not completely free to shift facts from ―element‖ status to ―sentencing‖ status. Federal Rule: standard of proof at trial is RD while standard of proof at sentencing is preponderance of evidence. 1) Important to characterize a fact as either an element of the offense (RD) or a sentencing factor. a) Standard: any finding by judge that exposes D to a higher penalty than a guilty verdict would is considered an element of the offense and must be proven by RD. b) Exception: prior convictions. 2) Argument Against This Standard: say it will knock down whole federal sentencing scheme but Apprendi seems to leave most sentencing factors in USSG intact and only require proof by preponderance. 3) Once D proves that a certain piece of evidence is an element of the offense, then D is entitled to all 6A protections. 4) ??? How can you redraft a statute to meet this test? States Rules: follow federal – sentencing factors need only be proved by a preponderance of evidence. How Can Prosecution Manipulate: 1) Prosecutors may manipulate charges so that the must questionable evidence would be heard for the first time at sentencing. 2) The success of such efforts will depend on how the legislature defines the elements of the offense.

b.

c. d.

65

3) e. f. 2.

Most state courts have upheld legislative decisions to allow the prosecution to prove some facts as ―sentencing enhancements.‖

Rules of Evidence for Criminal Trials Do Not Apply At Sentencing Hearings Most Courts Say Confrontation Clause Does Not Apply to Evidence Presented at Sentencing Hearing.

Revisiting Jury Verdicts: a. D’s Rights at Sentencing: 1) Right to allocution: D can make unsworn statement at sentencing. 2) Right to rebut allegation [see Ewing and ABA Standard handout]: D can challenge what prosecution says judge should consider in determining sentence. 3) Right to present mitigating evidence: in presentence report and orally. To what extent can prior convictions and acquittals be considered at sentencing? 1) Majority Rule: at sentencing for one crime, judge may consider evidence presented during prosecution for an earlier crime (even if it resulted in acquittal). a) Rationale: acquittal is not finding of innocence but merely acknowledgement that government failed to prove an essential element of the offense beyond RD. 2) Minority Rule: will not allow consideration of acquittals b/c demeans importance of acquitting jury. 3) ??? ABA: wants a hearing on whether to allow evidence in

b.

3.

Revisiting Guilty Pleas and Refusals to Plead: a. Reasons Judge Might Alter Sentence: 1) Harsher: a) Lack of remorse b) Waste of resources to go to trial. c) Presentation of frivolous argument – potential for perjury. d) To punish D for exercising rights (but this not allowed). 2) Lessen – especially if D pleads guilty: a) Plea agreement alone is not a reason to depart from the guidelines although courts routinely treat it as a reason to impose a less severe sentence. b) D accepted responsibility c) D expressed remorse. d) Shows potential or willingness to rehab. State and Federal Rule: sentencing judge cannot punish D for refusal to plead guilty: 1) B/c judge cannot punish D for exercising constitutional rights. 2) But judge can enhance sentence based on lack of remorse or failure to accept responsibility. 3) In reality, as long as judge does not say anything vindictive, he can act vindictively [see Coles v. US (DC 1996)]. Vindictive sentences are improper- judge cannot punish D for choosing to appeal..

b.

c. XI. APPEALS:

A. Who Appeals? 1. Generally: a. Appeals are NOT automatic (except in rare cases) – cases can be heard on appeal ONLY when at least one of the parties has the legal authority to request an appeal.

66

b. 2.

No constitutional right to appeal (although some try to argue this is a fundamental right).

Right to Appeal: a. b. Federal Rule: no constitutional right to appeal (although some try to argue this is a fundamental right). State Rules 1) State can set its own rules for appeal – certain limitations: a) State must supply transcript to D (equal protection of indigent Ds). b) If state grants appeal as matter of right, then state must grant the right to assistance of counsel. 2) All states have at least one appeal as a matter of right. 3) Many states allow right to appeal even from guilty pleas. Appeal After Guilty Plea: 1) Some states allow appeals after guilty pleas ONLY for those issues expressly reserved in a conditional plea agreement. 2) Some give trial or appellate court complete discretion. Bail Pending Appeal: after conviction, most state statutes and court rules make it far less likely that a trial court will release an offender while appeal is pending [see McKane v. Durstan (US 1894)]. Motion for New Trial is in Effect an “Appeal” to the Trial Court. CA Rules for When D Counsel Wants to Withdrawl From Case (usually b/c he thinks appeal is frivolous): 1) (Old) Anders Brief: involves all sorts of info on why D counsel is withdrawing – he must identify any issue that might support an appeal by D – might as well file an appellate brief. 2) (New) Wende Brief: a) Big difference is loss of D counsel‘s favorable to D review of record – now burden is on appellate court to find appealable issues. b) D‘s Fallback Protection = ineffective assistance of counsel. (1) Remember this is not like malpractice. (2) To show prejudice, D would have to show that but for D counsel‘s deficient performance and inability to find non-frivolous issues to file a merits brief, D would have prevailed on appeal.

c.

d.

e. f.

3.

Interlocutory Appeals: a. Generally: 1) Appeals usually take place after FINAL judgment. 2) In general, prosecutors have less access to appellate review than Ds. 3) At C/L, prosecution had no right to appeal - last 30 years, there has been increase in prosecution‘s right to appeal pretrial, post-trial and even during trial. a) Standard: courts will allow interlocutory appeal for treatment of issue that would otherwise be lost. Appeal of Pretrial Issues by Prosecution 1) Most states allow government to appeal certain pretrial rulings. 2) These do NOT create DJ problems b/c DJ does not attach until start of trial. 3) Example: state can appeal any suppression order that will substantially impair government‘s ability to prosecute its case [see People v. Young (Ill 1980)]. Appeal After Jeopardy Attaches

b.

c.

67

1) 2) 3) 4) 5)

Once trial begins, prosecution will have more difficulty obtaining appellate review for any errors by trial judge. Although most states block prosecution from suspending the proceeding to obtain review of a trial error, a growing # of states is willing to allow prosecution to bring an appeal after the trial has begun but before acquittal or a dismissal takes place. DJ clearly bars government appeals after acquittal. Any mistrial invokes DJ. Dismissals: a) If dismissal on a legal question occurs AFTER a conviction, appellate court can reverse the legal ruling and reinstate the factfinder‘s verdict without requiring a second trial. b) If dismissal on a legal question occurs BEFORE a verdict, prosecution MAY NOT appeal if the ruling amounts to a resolution, ―correct or not, of some or all of the factual elements of the offense charged.‖

d. e. f.

Prosecutorial and Appellate Court Screening of Appeals: chief prosecution has some say over what will be appealed. Moot Appeals By Prosecution: can appeal even if moot if issue is of statewide legal interest and vital to administration of justice (a few states allow). Interlocutory Appeals By D: 1) Less frequent than prosecution. 2) Common: a) Denials of motions for pretrial release. b) Trial judge‘s setting of bail amount.

B. Scope of Appeal 1. Review of Factual Findings: a. Distinguish b/w Review of Factual Findings and Review of Legal Findings: Fine line. b. Federal Rule for Reviewing Sufficiency of Evidence: whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the offense beyond RD [see Jackson v. VA (US 1979)]. 1) Impact of finding of insufficiency = reversal of conviction, DJ bar (comparable to acquittal at trial level). State Rule – 2 general approaches: 1) Follow federal rule but with slight different application due to flexibility of Jackson standard (which will allow for more aggressive or more deferential review). 2) Jackson Supplemented: require appellate courts to perform an additional task when reviewing the factual support for the guilty verdict. a) Example standard: appellate court reviews all the evidence WITHOUT viewing it in the light most favorable to the prosecution, and sets aside the verdict ONLY if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust [see Clewis v. State (Tex Crim App 1996)]. b) Impact of finding of insufficiency = new trial (comparable to hung jury on trial level). c) Criticism = 13th juror.

c.

2.

Retroactivity: a. Issue = benefit always goes to that specific D but what other Ds get benefit of the holding.

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b.

C/L view - full retroactivity: 1) Impact: any D ever convicted of this offense can bring this on appeal. 2) Rationale: judges did not make law but discover the law. 3) Criticism: judges will be very conservative about changing the law - impact of legal realism. Now – 4 possibilities – see Timeline Chart: 1) Purely prospective: 2) Specific D and future cases: 3) Pipeline Retroactivity (most important category): 4) Full Retroactivity: Judicial Analysis to Determine Level of Retroactivity: 1) Federal Rule = Pipeline Retroactivity 2) State Rule: Threshold Question + 3 Factors: a) Is it a new rule of law? (1) Does it break new ground, impose new obligation on government? b) Purpose of Rule: (1) Courts tend to view exclusionary rules as not retroactive b/c purpose is to deter police thus retroactivity would not matter. (2) Courts tend to view rules regarding the reliability of truth finding process as retroactive. c) Degree of Reliance on Old Rule: d) Effect on Administration of Justice: ??? Courts may view retroactivity challenges differently when they arise during post-conviction challenges.

c.

d.

e.

3.

Harmless Error: a. History: 1) Fahy v. CT (US 1963): HE = if there is no reasonable possibility that evidence might have contributed to D‘s conviction. 2) Chapman v. CA (US 1967): HE = if there is no reasonably doubt that the error contributed to the D‘s conviction. Rationale for HE Rule: balance efficiency and fairness to D. Federal Rule Crim Pro 52: any error . . which does not affect substantial rights shall be disregarded. Federal & State Rules: courts apply a wide variety of HE standards, using Fahy, Chapman and statutes and court rules. Non-HE Categories: 1) Structural defects less likely to be considered HE whereas trial errors usually fall under HE rule. 2) Examples: a) Right to counsel. b) Coerced confessions. c) Impartial judge. d) Ineffective assistance of counsel. e) Denial of self-representation

b. c. d. e.

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f) g) f. g. h.

Constitutionally deficient reasonable doubt charge Others?

Very hard to assess impact of jury instructions under HE: constitutionally deficient reasonable doubt charge is never HE but other instructions might be Plain Error: court will look at even if not raised on appeal. Very difficult for Ds to get around HE rule: if prosecution has a strong case on the record, it can use HE to avoid Ds challenges.

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