ADVANCED CRIMINAL PROCEDURE PROFESSOR WHITE FALL 2007 I. RIGHT TO COUNSEL: 6th & 14th Am A. General 1. Threshhold significance: key to protecting other rights a) Still a developing right: At time of const, mean’t retained not not appt’d 2. Govt obligation: Govt takes the initiative to exert powers, and therefore has obligation to take reasonable steps to eliminate those factors which are irrelevant to just admin of law (to the merits of the case) but could create penalties, e.g. whether you can afford a lawyer a) Sometimes innocent people are convicted. B. Recoupment Statutes 1. Rinaldi v. Yeager 1966; James v. Strange Ct invalidated recoupment for ep violations 2. Fuller v. OR – recoupment stat upheld – only if indigent but then later gain means a) Marshall dissent: debt to state was condition of probation, so failure to pay could send him to prison; Fuller and James don’t comport comfortably but rarely comes up 3. ABA rec: reimb should only be required if fraudulent representation of income to get counsel – White likes this idea C. Right to appointed Counsel in a capital case: 1. Powell v. Alabama 1932; holding ltd to facts: a) Capital case b) ▲ unable to employ counsel c) ▲ incapable of adequately defending self b/c of ignorance, feeblemindedness (only after a certain age), illiteracy or the like D. Right to Counsel for Indigent Fed ▲ in Felony cases 1. Johnson v. Zerbst: 1938 (applying rule to states was beyond facts of case) E. Right to Counsel (if facing imprisonment) applies to the states: 1. Gideon v. Wainwright, 1963 overruled Betts v. Brady, 1942 a) Case by case basis rule not practical; b) Management of defense is not a proper judicial function
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2. Argersinger v. Hamlin, 1972 a) Absent a knowing and intelligent waiver no person may be imprisoned without counsel (Powell concurrence middle course??) th F. No 14 Am right to counsel for probation hearing: Gagnon v. Scarpelli, 1973 G. Sentencing is a critical stage of proceeding: Mempa v. Rhay, 1967 Role of Counsel A. Right to self-representation: Faretta v. California 1975 a) Question is whether he understands conseq of defending self not that he understands how to def self b) Can make motion at any time in theory but harder to get day of trial or mid-trial c) Problems: Society interest in fair & efficient trials d) Remedy: new trial e) Judge can appoint standby or advisory counsel over ▲’s objection, but may cause problems on appeal (1) ▲ has no right to standby or advisory counsel (2) Right to retained advisory counsel f) Not a violation of rt of counsel to seize assets under RICO even if used to pay for lawyer (1) Caplin & Drysdale, Chartered v. United States g) No right to co-counsel; but judge can permit it Role of Counsel: A. Issue of Defense Functions: 1. Counsel has control over strategy, trial tactics: a) Mot to suppress b) Get dismissal for racial discrim in sel. of grand jury c) Ask to wear civilian clothes instead of prison garb d) Striking improper jury inx e) Seek aquittal or strategize towards conviction of lesser charge f) Whether to call a particular witness – Marsden g) Whether to introduce or object to ev h) Stip to facts during penalty phase? i) Challenge particular trial judge? j) Request ch. of venue? k) Stip to proceed w/less than 12 jurorsn (but almost never stip w/o client consent) l) Request determination of D’s competence to stand trial (expressing a doubt) 2. ▲ Controls a) Whether to testify – white always puts em on the record; good for DA and PD to get waiver of that right on record; b) Insanity plea – disting from competency – pleading insanity is d’s call c) Demand jury trial d) Plead guilty or the like e) Waive rt to be present at trial
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f) Forgo appeal 3. Inclusion of all claims will weakend a good case and not save a bad one (Jones v. Barnes 1983, p147) 4. PD must at least do some consultation (Fla v. Nixon) 5. Not absolute rules except when D has right 6. Most are atty’s decisions to make and can be made over obj of def but when it happens always edge towards IAC or Marsden motions or trying to fire retained B. IAC 1. Strickland v. Washington p158 (1984): capital sentencing: Counsel failed to seek mitigating ev, psych exam, ask relatives: a) 2 prongs: (1) Atty only has to be reasonably competent (2) Must show prejudice 2. Failure to consult regarding filing appeal doesn’t rise to IAC (Flores-Ortega) 3. Missing deadline to file appeal only IAC if appeal of right. C. Not addressed on direct appeal but rather on habeas Prosecutorial Discretion A. Limits: 1. Vindictiveness not okay 2. Overcriminalization: charging a crime that is rare and largely unknown can violate DP or EP (Many statutes no longer crimes under case law) 3. Targeted prosecution B. Allocation of resources 1. In Fed system, independence for us attys but can get fired C. In CA AG has const. supervisorial auth over DA; AG can order DA to do something or remove case D. Court rarely has role to play in filing decision but judge will require reason for dismissal so judge can’t make you start a case but can keep you from dropping it E. DA must personally believe ▲ is guilty Pre-Trial Release Ch. 13 A. No absolute rt to bail but may have excessive bail claim under under 8th Am B. OR must be least restrictive to accomplish courts needs; can have conditions C. Factors for setting bail (Stack): 1. The charge 2. Evidence of Guilt 3. Characteristics of the accused 4. Risk of flight D. DA doesn’t nec oppose (so everyone wants bail) E. Presumptive bail schedule 1. Arrested on Warrant: Judge has already set the bail 2. Arrest PC, Jail looks at presumptive bail schedule to set bail F. No absolute rt to Bail on appeal G. Cruz waiver: 1. Waive your rights under plea agreement – plea guilty but judge no longer bound by agreement
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2. Variation on cruz waiver: sentence to 6y in sp, impose but stay; and say if you show up on a certain day, sentence to 2y; if he doesn’t show up; doesn’t matter, b/c stay is lifted Can be violation of DP rt to fair trial to deny pretrial release (Kinney v. Lenon: lawyers couldn’t effectively defend if ▲ not released to contact w’s) Preventative Detention: 1. Pursuant to statute 2. Need Probable cause the def committed the offense 3. Adverserial hearing: Std of proof is clear and convincing ev that no conditions of release can assure safety of public etc.
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Pleas: A. Requirements: 1. Voluntary a) time limits on offers not coercive in abstract 2. Knowing & Intelligent – D understands what is going on B. Specific: 1. Waiver of jury trial (by both sides) 2. Waiver of protection against self incrim 3. Waiver of right to confront and cross examine witnesses against you 4. Waiver of right to present evidence on your own behalf 5. Factual basis a) West plea – can plead to a crime that you deny committing – fiction: we believe you did it; but you don’t want to say you did it b) Felony plea - cannot stipulate to a factual basis; in a felony you can’t C. DA can threaten to add charges during plea bargaining (BordenKircher) 1. Caselaw: you can always amend a complaint or information before trial D. Can’t back out of plea b/c changed law would have changed circumstances (Brady v. US. 1970) E. Package deals okay but may lead to voluntariness problems F. Judicial interventions: Ad hoc punishments can’t be condition of plea – but can if closely related and made a condition of probation G. Role of Judge in Plea Bargaining: 1. Prosecution can’t break deal but judge can reject (Santobello) H. DA did not break deal to recommend probation by remaining silent (US v. Benchimol) 1. But DA can’t talk shit about agreement (Brown) I. USSG 6B1.2a: Fed practice:underlying conduct can be used for sentencing even if charge dismissed. Can make that part of agreement. J. If ▲ agrees to testify for downward departure and new trial: 1. Majority: obligated to testify again on new trial (Ricketts v. Adamson 1987) and plea set aside K. Plea Withdrawal: 1. Up to judge’s discretion; difficult to do (basicall have to show fraud); judge will not allow if DA has detrimentally relied on it 2. Unrealized expectations
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a) Can’t withdraw plea because of erroneous estimate or expectation (Fields v. Gibson) b) Can only withdraw if there is mistatement of law on the record: eg ‘you won’t be on probation’ (1) If not on record, can only be pursued by writ to reverse it L. Right to Counsel in plea negotiations 1. 6th am violation to negotiate plea with D in jail without counsel present; counsel cannot waive; only D can waive right to counsel (Anderson v. North Carolina 1963) 2. Minority rule: felony defendants may not plead guilty without counsel a) Conflict with Faretta? M. Fed prosecutors do not have to turn over impeachment info before plea; doesn’t violate voluntariness Discovery A. Must provide material exculpatory evidence (Brady v. Maryland) B. Reciprocal disco does not violate 5th Am C. Alibi witness discovery rule does not violate 5th A (Williams) 1. D’s choice to use alibi defense 2. Info would come out anyway and DA could just continue based on surprise 3. In some jx there is a prohibition on using alibi witness rule discovery at trial if ▲ changes strategy D. DA must alert court and ▲ when govt witnesses are giving false testimony (Mooney v. Houlihan, 1935) E. Requests for disco: 1. Statutory but required in some situations even without request 2. Mechanical Factorsn for sanctions: a) how material/significant was ev b) how flagrant was violation c) was there affirmative misrepresentation? 3. No distinction between specific and general requests but more likely to get better remedy if request was specific (Bagley) F. Scope 1. DA must give everything within constructive control (except work product) 2. Rule 16 – Fed R. Crim Pro: DA must give over ev that could be discovered with due diligence; if question witnesses must provide copy to ▲ a) But no obligation to give names if didn’t question G. 4 reqs to trigger 5th am protections for discovery (Izazaga v. Sup ct Cal. 1991): 1. Incriminating 2. Personal to D 3. Obtained by compulsion 4. Testimonial or communicative in nature H. Don’t have to provide Disco of materials or info don’t intend to use at trial 1. Closer call when you are talking about an expert – doctor, scientist who has rendered a report that you don’t want to disclose a) White says, don’t have to give that up I. Protective order in Discovery:
1. if humiliates, or controversial 2. Addresses & phone numbers of witnesses (and jurors for that matter): protected because of concern of initimidation, want W to believe can come fwd J. If ▲ doesn’t disclose in advance judge can exclude W – no absolute right to call W; but exclusion s/b last resort K. Most common sanction is to continue case to give DA time to review VIII. The Criminal Trial A. Presence of the Defendant 1. ▲ can lose rt to be present if misbehaves (Illinois v. Allen 1970) a) D waives rts by his conduct 2. Problems if ▲ representing self a) Bind and gag ▲? Prejudice jury? b) Cite for contempt – not practical c) Take out until behaves d) White says after findings can shackle D so that jury can’t see – but they can hear – can instruct jury to disregard but impractical (1) Wouldn’t gag, if he is screaming get him out and set up video so he can see what is going on and even give ear piece to be able to talk to his lawyer; maximize virtual reality of him being in ct th 3. No 6 am Rt to presence in some cases, e.g., in Stincer, competency hearing, (Not a stage of trial where ev being presented to trier of fact), other situations where it would be necessary for part of proceeding to be done not in presence of def: a) Atty is terrified of D and asking to be relieved mid trial b) No right of presence where juror came to judges chambers to inform him of aquaintance with someone mentioned in trial – b/c discussion concerned groudns for challenging juror’s impartiality – but D’s absence harmless c) No right to presence in in camera inquiry into whether to allow withdrawal of counsel based on belief that client intended to commit perjury 4. So danger when don’t have D present, have to make sure nothing significant happening B. Conditions of presence can violate DP 1. Wearing prison garb violated due process (Estelle v. Williams) 2. Due process not violated by presence of a bunch of uniformed officers (Holbrook) C. Statements about Right to not self-incriminate 1. DA cannot express or hint at inference that ▲ is guilty because didn’t testify but can say things like ―you haven’t heard anything to refute this‖ (Griffin v. California 1965) but fine line; judge’s get annoyed if you go near it. a) Scalia dissent: this was never about not commenting on inferences drawn from choice not to testify, was always about not forcing someone to do it against their will b) ▲ can request inx; judge can give inx over ▲’s obj; some jx judge required to give inx
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2. Judge cannot use ▲ not testifying as factor in sentencing (Mitchell v. US 1999) 3. If D counsel asserts that govt did not allow D to testify, DA can rebut but not instruct jury to draw unfav inference (US v. Robinson 1458) 4. Ct said unconst to foreclose later testimony if D invokes rt at first (Brooks v. Tennessee) Other Prohibited Statements (less serious than Griffin error) 1. No expression of personal opinion – frame things objectively 2. No argument that diverts jury from responsibility to decide case on merits (no suggetion of broader issue e.g. need to send message) 3. No appealing to prejudice (Darden v. Wainwright, 1986, but ct said harmless error) 4. No impugning integrity of other side 5. Cannot intentionally misstate the law 6. In death penalty cases – can’t imply that if they don’t get sentenced to death they will get out 7. In non death cases, can’t talk about sentence at all Deliberations and Verdicts 1. Nonunanimous jury okay (apodaca v. oregon, 1972) 2. Okay to allow jury to find 1st deg murder under either theory (premed murd or fel. murd); don’t need unanimity inx (Schad v. Arizona) a) In CA, murder is filed as open murder: ct 1 murder – when it happened who was victim, can put any theory in front of jury and jury decides it b) Distinction from Richardson v. US where defendant charged with engaging in continous crim enterprise, need continuing series of violations (1) If each violation is separate element must agree on all 3 but if one element, don’t have to agree c) Situations in which you should give unanimity inx: (1) 2 assaults with deadly weapon one by d with knife other by friend with gun (2) or 2 acts of bribery (3) or 2 acts of making a crim threat 3. Inconsistent verdicts ok: e.g. ▲ charged with mayhem and with assault with deadly weapon, plunged knife through friends eye: aquitted of mayhem and conv of assault w/deadly weapon a) We don’t know what jurors are thinking, as long as there is evidence to support, it is okay b) Lenity 4. Deadlocked Juries: when juries can’t reach verdict, will voire dire them a bit then cutem loose, declare mistrial a) make sure they have really deliberated – can’t just do new trial b) Can’t push jury too hard – 5. Juror misconduct, 2 categories: a) something being brough in from outside
b) jurors drank, smoked weed, used cocaine during trial – was good enough. IX. Jeopardy A. When does it attach 1. Jury trial – attaches when jury empaneled 2. Bench trial – when first witness is sworn 3. Guilty plea - when judgment is entered on plea. B. DJ – comprises 3 diff protections: 1. Protects against 2d prosecutions for same offense after aquittal 2. Protects against 2d prosecutions for same offense after conviction 3. Protects against multiple punishments for same offense C. Prosecution motion to dismiss or court sua sponte, DJ likely to attach D. If mistrial or dism pursuant to stat., ask 1. Was it on ▲’s motion? a) If so, was it fault of pros.? 2. Was it related to guilt or innocence 3. Was Gov’t using power to oppress, harass E. Reprosecution by a different Sovereign Jury Selection: A. 6th Am Jury Trial Guarantee: 1. Jurors selected at random from a fair cross-section of the community in the district or division where the ct convenes 2. No citizen shall be excluded from jury service on account of race, color, religion, sex, national origin or economic status (Taylor) a) Was intent behind the rule/statute (to preclude certain group of juror or not to harm patients/economy for ex.?) b) Was it construed to promote an uneven result c) Was there a r/ble effort made to secure a cross section? d) When there is a systematic exclusion or any kind, you need to look at whether it is tailored to a significant state interest: (1) Excluding felons (2) Exemption of farmers during harvest time intent is not to keep them off the juries, but not to upset the economy (could not exclude outside of harvest season) 3. Okay if DA has jury book with history of juror’s votes and PD does not – as long as trial is fair, no 6th A violation. B. 2 LINES of cases: 1. Equal protection line that started in the 19th cent – more limited must show discriminatory intent. 2. 6th Am that began in 1968. C. Generally 1. Jurors names can come from Voter registration list 2. Excuses to get out of jury duty: a) Economic hardship b) Poor health c) Old age
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d) Need to care for dependants e) Distance they live from the courthouse. 3. Disqualified from jury service: a) Not of voting age b) Not residents of the jurisdiction c) Unable to read and write English d) Felony convictions e) Occupation (1) Doctors (2) Teachers (3) Clergy D. Voir Dire 1. For cause challenges a) Made by the judge on the motion of the atty. b) No limit c) Outside the presence of the jury. d) Only ask questions about whether a person is qualified to serve on a jury. (1) Don’t ask questions about whether or not you want them as a juror. e) As long as someone says they could in theory impose death penalty, even though against it, they can't be excluded for cause. 2. Peremptory Challenges: a) Cal—spelled out by statute. The more serious the penalty the more peremptory challenges you get. b) Cannot be based on any suspect criteria (Batson – Race) (1) When Batson applies, must make a prima facie showing of race discrim, then other side must give neutral explanation 3. Written voir dire: a) Significantly focused on getting answers to be used for peremptory challenges. Prof thinks this is not proper although some judges allow it. SENTENCING: A. Principles: 1. Deterrence 2. Rehab 3. Incapacitation 4. Retribution (distinct from revenge?) B. Frameworks for sentencing 1. Retributive: a) Punishment to this particular defendant, personal punishment; looks back at what has been done. Does not look forward. Even if you knew D would never do it again, would still punish. Hobbsian social contract idea. Violate the K, you must suffer! Purpose is to even things out with that person and reduce likelihood that he will offend again. Assumes free will 2. Utilitarian
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a) Looks forward. Has specific and general aspect; Assesses overall community; Assumes people are pragmatic and driven by desire for pleasure and avoidance of pain. For sentence, look at (1) Specific utility in particular case: (a) If you KNOW D will not do it again, no need to punish. (2) General: (a) Might punish just for general good of deterring others. (b) Might even execute an innocent man to prevent rioting mob rule 3. Constitutional Requirements: a) Enhancements: Any fact that increases penalty beyond prescribed max (stat) must be proved to a jury beyond reas. doubt (Apprendi)Aggravators: Need jury to make any finding to go beyond middle term (1) judges finding of prior conviction can be used to aggravate (2) SB 40 amended sentencing law to say ct has discretion without factfinding to find within range – so gets rid of Blakely issue. Appellate Remedies A. Not a fed const right (McKane v. Durston, 1894) 1. Would probably come out diff today but not a question because every jx has right of appeal – sometimes it is discretionary right B. Importance of preserving issues for appeal: 1. Not just making objections but actions: a) impeachment with prior conviciton, if D objects but elects not to testify, it is not preserved on appeal; to preserve, D has to testify, have prior conv. come in and then get a conviction 2. If no objection, more difficult on appeal, have to show fundamental unfairness 3. Exception: Plain Error: clear that error notwithstanding, eg Griffin error, cognizable on appeal, ct may reverse C. Distinguish Habeas Writs 1. Not tied to record below, has to do with conditions of confinement 2. HC is now primarily statutory animal and therefore gets expanded and contracted and contracted a lot last two decades by fed cts and congress a) Requirements (1) can’t raise on habeas if could have been raised on appeal (2) must be in custody or on parole (3) Burden always on petitioner (4) std is preponderance of ev; 3. Not entitled to counsel; ct will review it, if ct thinks no merit, denied; if merit, ct issues order to show cause; and respondent must say why relief sought should not be granted 4. Constitutional Requirements: a) Must have new factors for judge to go beyond original sentence on appeal (NC v. Pearce 1969)
(1) Potential vindictiveness is a major factor (2) Eventhough no const. rt to appeal so why does it matter? because once state provides appellate review then other constitutional rights come into play: equal protection & due process (3) But: (a) higher sentence on retrial justified by reference to a conviction on a previously pending charge that had happened between first and second sentencing (Wasden v. US 1984) (b) Does not apply to higher sentence imposed on a trial de novo appeal (Colten v. Kentucky 1972) (i) Ct finds no chance of vindictiveness and this is about minimizing potential for vindictiveness; factors include diff Judge at sentencing D. Writs 1. Generally appeals require a final j’ment. don’t favor interlocutory appeals, except if pros loses motion to suppress 2. ▲ can file writ - automatically stays trial (if pros files writ tolls speedy trial time) 3. Preemptory writ: an order to the lower ct to vacate the j’ment and enter a new & diff j’ment. 4. Alternative writ: e.g. by Tuesday of next week you are ordered to set aside your order/the party must file points & autorities as to why it shouldn’t be set aside. Set a date – if you haven’t filed points & authorities à it automatically becomes preemptory. 5. If you lose the writ you can still appeal. 6. You can seek writ of cert to Supreme CT. 7. Disfavored & not usually granted 8. Common sense approach: need to ask what is the damage/failing if you don’t have an interlocutory appeal. E. Collateral Orders 1. Another category where don’t require post conviction relief: 2. Separate from merits of case, e.g. a D to be medicated so as to be competent to stand trial; setting bail. 3. 3 Criteria (Sell v United States): a) Must Conclusively determine the disputed question b) Must resolve an important issue c) Must be unreviewable on appeal Speedy trial A. 4 factors (Ct has enormous discretion) 1. Length of delay 2. Gov’t’s reason for delay 3. D’s assertion of right 4. Prejudice a) prevent oppressive pretrial incarceration
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b) minimize anxiety and concern of accused c) limit possibility that defense will be impaired 5. Another factor in many states is how serious the crime is Statutory Protections in this area: 1. prelim. after arraignment; trial date after prelim.