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The Grand Jury A. Introduction 1. what should the government have to do in order to bring a person to trial? a) note: grand jury clause of 5th Am is not binding on the states b) is “prosecutor‟s information” better or worse than Grand Jury 2. Prosecutor has awesome powers: a) indict people b) subpoena (non-suspects) 3. GJ as a fourth branch of government a) independent b) limited by R. 6 B. The Relationship of the Grand Jury to the Prosecutor and the Court 1. Most courts view the prosecutor‟s relationship to the grand jury as subject to minimal judicial scrutiny 2. United States v. Chanen (9th Cir., 1977, p. 704) a) facts: (1) at 3rd GJ, government presents evidence by reading testimony from 2nd GJ (2) indictment issued b) district court: quashed indictment (1) where the 1st GJ failed to indict based on live testimony, the later GJ should have heard live testimony as well (2) protect integrity of judicial process (3) fundamentally unfair c) court of appeals: reversed (1) the prosecutor‟s actions are not “fundamentally unfair,” and therefore did not constitute a basis for dismissal (2) prosecutor‟s role (a) determine what witnesses to call (b) conduct examinations (c) prepares indictment (d) “executive function” (3) court‟s role (a) summon / compel witnesses to attend (b) may dismiss indictment for legal insufficiency (exercises authority over GJ) (c) may dismiss indictment for prosecutorial misconduct (exercises authority over prosecutor) (4) Separation of Powers: Independence of the 3 actors: (a) “Nevertheless, given the constitutionally-based independence of each of the three actors—court, prosecutor, and grand jury—we believe a court may not exercise its „supervisory power‟ in a way that encroaches on the prerogatives of the other two unless there is a clear basis in fact and law for doing so” (b) “supervisory power” can‟t subvert separation of powers (5) asserted legal basis for dc‟s interference with prosecutorial discretion (a) preserve integrity of judicial process (b) avoid any fundamental unfairness (c) not implicated 3. Q: should there be a “new evidence” rule to discourage GJ shopping? a) note: in Goetz case, the 1st GJ refused to indict b) absolute rule against re-presentment is a problem 4. Footnote 34 a) United States v. McKenzie (5th Cir., 1982, p. 705) (1) standard: “only when prosecutorial misconduct amounts to overbearing the will of the GJ so that the indictment is, in effect, that of the prosecutor rather than the GJ” (2) application: OK for prosecutor to tell GJ that the evidence shows the is guilty b) United States v. Udziela (7th Cir., 1982, p. 705): when prosecutor discovers that perjured testimony has been presented to a GJ, the government has options of:
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(1) starting over (2) in camera inspection to ascertain sufficient untainted evidence in support of indictment (with defense counsel present) Role of the Prosecutor a) legal advisor to the GJ b) presents evidence to the GJ c) negate GJ (1) refusing to sign the indictment (2) nolle prosequi: dismisses the charges (3) resubmit a no bill case to another GJ
C. The Grand Jury as Protection Against Unjust Prosecution 1. historically: stand between the accuser and the accused 2. recently: rubber stamp a) “Today, the GJ is the total captive of the prosecutor” b) GJ‟s institutional schizophrenia: (1) accuser (2) impartial fact-finder 3. Ex Parte Investigation a) GJ hears only one side of the case b) principal function to force prosecution to gather and to offer evidence in some systematic way before a charge is brought sometimes prosecutors, knowing that have a weak case, decide not to ask for indictment or to seek indictments on lesser offenses. D. The Evidence Before the Grand Jury 1. Evidence Inadmissible at Trial can usually be offered to GJ a) hearsay (1) Costello v. United States (1956, p. 707) hearsay (a) question: is indictment based solely on hearsay OK? (b) neither 5th Am. nor any other constitutional provision prescribes the kind of evidence upon which GJ must act. (i) constitutional text does not specify (ii) history: laymen conducting their inquiries unfettered by technical rules (iii) policy (a) great delays if indictments were open to challenge on the basis of incompetent evidence (b) neither justice nor fair trial will be affected, b/c only admissible evidence at trial problems cured at trial (c) Burton concurrence: majority decision too broad (i) OK to examine for bias or prejudice (ii) OK to quash for no substantial or persuasive evidence (2) arguments in support of Costello (a) probative investigative function admissibleadjudicative function (b) evidentiary rules are designed for adversarial proceedings (c) there‟s still a trial that will remedy any misleading effects of inadmissible evidence (d) GJ would be burdened by rules of evidence (i) inefficiency (ii) infringe on independence (e) “harmless error” (3) in Alaska, there is no hearsay at the GJ absent compelling justification b) illegally obtained (1) US v. Calandra (1974, p. 709)—illegally seized evidence can be used (2) Gelbard v. US (1972, p. 709)—unless a Congressional statute specifically allows a witness to raise a claim that evidence is being improperly used 2. Exculpatory Evidence
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US v. Williams (1992, p. 709) (1) 10th Cir. supervisory rule required prosecutor‟s to present “substantial exculpatory evidence” to the grand jury (2) SC: 10th Cir.‟s rule exceeded the courts‟ supervisory authority (a) GJ is separate from the courts (b) rule: turns GJ from accusatoryadjudicative body (i) if we required balance than the should be able to tender own defense (ii) if we didn‟t allow to defend, he would just give exculpatory material to prosecutor (c) GJ can choose what evidence it wants to hear (d) rule is against history (common law of the 5th Am. jury) (3) dissent (a) prosecutorial misconduct would be allowed (b) endorsed US Attorney manual: “personally aware of substantial evidence which directly negates” b) note: if wants to testify prosecutor should always let him (1) discovery of defense case (2) impeachment (3) also, why ask for an indictment if the is innocent? (4) BUT defense attorney should never let testify before GJif the case is that good, then go negotiate with prosecutor E. The Grand Jury as the Grand Inquest 1. Broad scope of inquiry a) investigate into the existence of any and all criminal conduct b) person can be called at “hint of suspicion” or “ prosecutor‟s speculation” c) privileges: burden is on person called to raise them (1) 5th Am. act-of-production incrimination claims are made and granted 2. GJ can subpoena anyone a) burdens are part of public duties (1) travel burdens (2) Branzburg v. Hayes: reporter‟s relationship w/ Black Panther‟s compromised b) mitigation of duties in exceptional circumstances (1) self-incrimination (2) confidential matters c) US v. Dionisio (1973, p. 712): subpoena of 20 persons for voice exemplars OK (1) C.A.: unreasonable seizure of voice exemplars under 4th Am. (2) SC: (a) no seizure (b) number is irrelevant, because GJ‟s job is to run down all clues (c) SC refuses to impose any weighing test (3) dissent (a) stigma (b) reasonableness (i) authorized investigation (ii) inquiry is constitutional (iii) evidence sought is relevant (iv) request is adequate, but not excessive, for the purposes of the inquiry d) Subpoenaing Criminal Defense Attorneys (1) fee arrangements not protected by attorney client privilege, unless it would reveal substance of relationship (2) no 6th Am. protection, because no indictment yet (3) failed arguments: (a) chilling effect (b) possible conflicting out of attorney
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(4) ethical standards (a) before subpoenaing attorneys, prosecutor must show (i) relevance (ii) lack of reasonable alternative (b) Dep‟t of Justice says these rules conflict with FedRCrimP. 17, which provides court review of subpoenas only after served e) No probable cause requirement: US v. R. Enterprises Inc (1991, p. 715) (1) not a seizure unless unduly burdensome or overly broad (2) needn‟t be relevant, admissible, specific (trial subpoena under US v. Nixon) (3) no probable cause requirement because the whole point of GJ is whether probable cause exists (4) GJ subpoenas under R. 17(c) (a) not unreasonable or oppressive (b) standard to quash a GJ subpoena: “no reasonable possibility that the category of materials will produce information relevant to the general subject of the GJ‟s investigation” (extremely broad definition of relevance) (9-0 opinion) (5) concurrence: balancing test: reasonableness ought to be determined in light of the burden of producing requested information Regulating Abuses (egregious cases) a) harassment and abuse of citizens: Ealy v. Littlejohn (5th Cir. 1978, p. 715)--subpoenas information on membership of civil rights organization (1 st Am. case) b) discovery device for civil litigation c) post-indictment testimony on the pending prosecution (1) 5th Am violation: secret interrogation violating DP clause (2) 6th Am violation: without counsel present (3) But OK to call for testimony on new additional charges ( so hard to enforce) Warnings at the Grand Jury a) GJ is unfair because witnesses don‟t know what‟s going on b) US Attorney Manual requires warnings (hortatory only) (1) subject matter of inquiry, to extent that investigation will not be compromised (2) witness may refuse to self-incriminate (3) testimony may be used against witness (4) witness may step outside to consult counsel c) targets: no right to testify, but can be heard if they want d) no private right of action for violation of warning requirements e) no Miranda required, because not custody Counsel in the GJ Room a) for (1) witness may consult lawyer before (2) witness may consult lawyer outside (3) more efficient to allow lawyer inside b) against (1) presence of lawyer will turn GJ into adversarial proceeding (2) less cooperation from witness
II. The Right to Counsel A. What Trials Require Counsel? 1. 2. 3. 4. Gideon v. Wainwright (1963, p. 659)-- counsel required for indigents in felony cases Argersinger v. Hamlin (1972, p. 663)—no imprisonment (even for misdemeanor) without counsel Scott v. Illinois (1979, p. 664)—no requirement of counsel if is fined, even if the statute authorizes imprisonment Use of Uncounseled Convictions to Enhance a Sentence a) Baldasar v. Illinois (1980, p. 667)—violation of 6th Am right to counsel overruled by b) Nichols v. US (1994, p. 667) (1) OK to use previous uncounseled conviction to enhance sentence in later case
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(2) rationale: (a) sentencing rules are not as strict (b) sentencing judge can use prior bad acts, even without conviction (3) concurrence: (a) Baldasar not overruled, because here the judge had the discretion to ignore the previous conviction if not reliable (b) BUT how can a judge tell if it‟s reliable (4) dissent: (a) if the rationale of no imprisonment for counsel-less convictions is that they are insufficiently reliable (b) then why should we allow counsel-less convictions to enhance a sentence? (5) AS: Nichols flies in the face of Gideon B. The Scope of the Right 1. Critical Stage Theory a) functional theory rejected (1) Kirby v. Illinois (1972, p. 669) (a) although there is a 6th Am right to counsel in the line-up context (Wade), (b) and right to counsel at ID procedure important to avoid suggestiveness (c) no 6th Amendment violation in conducting show-up without counsel before indictment (d) cemented importance of indictment as time when 6h Am right to counsel attaches b) 6th Am right to counsel attaches at critical stage: adversarial judicial proceeding (indictment/arraignment) th 6 Am right to counsel only mandates presence of counsel where the needs lawyer‟s help a) US v. Ash (1973, p. 670) (1) no right to counsel at a photographic identification session, post-indictment (2) because had no right to be present (a) so doesn‟t need lawyer‟s help (b) BUT the lawyer is needed to avoid impermissible suggestiveness b) note: if case went other way, how to distinguish investigative interviews (can also be suggestive)
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C. The Right to Effective Assistance of Counsel 1. The 2-Pronged Test: a) Strickland v. Washington (1984, p. 1045) (1) facts: alleged deficiencies include (a) lawyer failed to request a psychiatric report (b) lawyer failed to call character witnesses (2) SC: 2 prongs (a) performance (ineffectiveness) (i) “within the wide range of professional competence” (a) e.g., lawyer may substantially rely on what client says (b) no error of performance is per se ineffectiveness (c) lists basic duties of lawyer, but rejects checklist approach (b) prejudice (i) “Accordingly, the appropriate test for prejudice finds its roots in the test for materiality of exculpatory information not disclosed to the defenses by the prosecution. The must show that there is a reasonable probability that, but for the counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. . . .When a challenges a conviction, the question is whether there is a reasonable probability that, absent error, the factfinder would have had a reasonable doubt respecting guilt” (p. 1053)
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(a) not more likely than not (reasonable probability is less than preponderance) (b) outcome determinative type of test (i) need not be acquittal (ii) hung jury is enough (ii) note: SC rejects lower court‟s easier test: professional errors impaired the presentation of the defense b) application of Strickland (1) performance (a) strategy ineffective assistance (i) not presenting evidence for fear of prosecution‟s rebuttal is OK (Darden v. Wainwright, 1986, p. 1060) (ii) failure to file a motion to suppress (a) is OK if the motion would have been unavailing (b) is OK if no prejudice (trier of fact would not have had reasonable doubt even without the evidence) (b) outside the range of professional competence can be ineffective (i) stupid trial strategies (a) refusal to participate in a trial because motion to continue is denied (b) policy of never objecting to objectionable evidence (c) no strategy at all (ii) ignorance of law is not strategy (Kimmelman v. Morrison, 1986, p. 1060) (2) prejudice (a) test is outcome-based, BUT (b) Lockhart v. Fretwell (1993, p. 1066)—due process overlay (i) facts: (a) counsel failed to object to impermissible use of aggravating factor in capital case (b) by the time of appeal, the law had changed, rendering the use of the aggravating factor permissible (ii) SC: no IAC (a) although both prongs of Strickland test satisfied, the error was harmless as a constitutional matter (b) no “fundamental unfairness” in allowing the sentence to stand (c) due process overlay to Strickland standard (iii) dissent: (a) prejudicial error in a capital case is IAC (b) BUT what remedy could be granted if dissent prevailed? (i) remand for new sentencing hearing allowing the factor What‟s the point? (ii) remand for new sentencing hearing disallowing the factor (iii) no hearing: life sentence, which was the maximum sentence allowable at time of original hearing (3) Per Se Ineffectiveness and Prejudice (a) US v. Cronic (1984, p. 1069) (i) CA found IAC by inference (ii) SC: must be actual breakdown of adversarial process no per se rules (iii) on remand: CA found actual IAC (b) only per se IAC: denial of counsel within the meaning of the 6th Amendment 2. When the Right Applies a) retained counsel can be found to be ineffective (Cuyler v. Sullivan, 1980, p. 1056) b) when entering guilty plea (1) test: but for counsel‟s errors, would not have pleaded guilty (2) Hill v. Lockhart (1989, 8th Cir., p. 1068) (a) facts (i) counsel says would be eligible for parole in 6 years, but really after 9 years
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(ii) trial could result in life sentence (b) SC says no prejudice (c) on subsequent habeas petition, Hill prevails (i) because he had already rejected plea to 9 years (ii) because even with life sentence, he could have gotten out in 9 years for good time (iii) he argued he would have rolled the dice (3) Czere v. Butler (1987, 5th Cir., p. 1068)—40 years vs. 80 years does not constitute IAC when could have faced death penalty c) when rejecting a guilty plea (1) test: but for counsel‟s errors, would have pleaded guilty (2) Toro v. Fairman (1991, 7th Cir., p. 1068) (a) facts: (i) had no defense to the charges (ii) received a much longer sentence after being tried and found guilty (b) 7th Cir: there was error, but no prejudice (c) BUT why wasn‟t the bad advice in this case per se prejudicial? d) appeals (1) right to effective assistance of counsel in 1st appeal of right (Evitts v. Lucey, 1985, p. 1057) (2) but NOT for later appeals, because no right to counsel (a) BUT: if state appoints counsel, shouldn‟t there be a right that that counsel be effective? (3) appeals without merit: Anders v. California (1967, p. 1057) (a) appointed counsel can withdraw from appeal if it would be frivolous (b) but, must file Anders brief (i) explain frivolity (ii) locate anything in record that might arguably support appeal (iii) if no appeal and no Anders brief ineffective assistance (c) AS: doing an Anders brief is more work than doing the appeal (4) failure to pursue appeal: what is the standard? (a) likelihood of success on appeal should be this (b) likelihood of acquittal on retrial hard showing, but if you can‟t make it, then why should there be a new trial due to IAC? (c) Lozada v. Deeds (1991)—habeas context D. The Right to Conflict-Free Representation 1. Should an attorney be permitted to represent multiple s in a single case? a) may be very helpful to the s in the aggregate (common defense strategy, etc.) b) BUT always puts clients in a certain degree of tension Duty of Court Inquiry: Holloway v. Arkansas (1978, p. 1074) a) note: multiple representation is not always per se IAC (1) possible to get a VKI waiver of the duty of loyalty (2) BUT Court has the duty of inquiry (Rule 44(c), p. 1076 on Joint Representation) (a) court must personally advise of the rights (b) court shall take such measure as may be appropriate to protect each ‟s right to counsel (c) BUT what good does that do? b) holding: per se reversal because judge denied defense counsel motions to appoint separate counsel without adequate inquiry (1) difficult to show prejudice from trial record, (2) because how can you tell from trial record what lawyer refrained from doing (3) so prejudice is presumed Active Conflict Impairing the Representation a) Cuyler v. Sullivan (1980, p. 1077)-- must make showing of conflict if no objection is made at time (1) court: if has not objected, then the must show
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(a) an actual conflict of interest (b) which adversely affected performance (c) harder rule because otherwise the gets it both ways (2) Marshall dissent: 2d prong is unduly harsh and speculative b) Burger v. Kemp (1987, p. 1077)—representation of co- by law partners is not active representation of conflicting interests (1) facts: (a) tried separately, and in trials, each emphasized the others‟ culpability (b) Burger sentenced to death (c) lower court: no actual conflict (2) SC (a) does not disturb the finding of no actual conflict (b) note: even if there was an actual conflict, counsel‟s advocacy was not affected by it, so no prejudice (c) concern: dearth of criminal defense attorneys, especially in capital cases (3) dissent: (a) co-s had appeals pending at the same time (b) counsel did not argue that Burger less culpable (c) no mitigating evidence offered in death penalty of low IQ teen c) US v. Laura (3rd Cir 1981, p. 1079)—coercion (1) facts: (a) district court judge ordered H & W retention of separate counsel (b) lawyer prepares affidavits waiving objection to separate counsel (c) H & W plead guilty (d) W moves to withdraw guilty plea due to lawyer‟s conflict (i) no valid waiver because W didn‟t understand (ii) counsel was loyal to H (2) 3rd Cir: denied W‟s claims (3) dissent: argued for one-lawyer, one-client rule (a) real conflict here (b) no waiver of W‟s right to be advised by a lawyer loyal to her d) US v. Gambino (1988, 3rd Cir., p. 1080) (1) test: (a) must demonstrate that some plausible defense strategy or tactic might have been pursued (viable, but not necessarily successful) (b) that strategy was inherently in conflict with or not undertaken due to attorney‟s other loyalties/interests (2) court rules: Gambino was not prejudiced (a) Mazzara was not on trial and therefore it wouldn‟t harm him to pin it on him (b) so there was no actual conflict (3) dissent: if the lawyer had pursued that theory he would have developed evidence against Mazzara, who is also his client should have satisfied the 2-prong test (4) AS: appellate courts do not reverse convictions in organized crime cases. non-waivable conflict: US v. Fulton (2d Cir., 1993, p. 1082) a) facts: (1) government tells judge that prosecution witness imported drugs for defense counsel (2) judge told defense counsel and (3) stayed with counsel b) 2nd Cir: overturned conviction because the conflict was so serious that it was not waivable c) possible solution: appoint independent counsel to advise the defendant d) problem: what if the report was false? (1) there would be no conflict, because the lawyer could cross-examine the witness and there would be no risk that he wouldn‟t cut the best deal he could
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(2) BUT if the witness says at trial that they dealt together then the lawyer‟s credibility is put into question at trial. E. Limitations on the Right to Counsel of Choice 1. Introduction a) indigent (1) has no right to counsel of choice (2) only right is to effective assistance of counsel (Morris v. Slappy, 1983, p. 1097) b) non-indigent : (1) has qualified 6th Amendment right to counsel of choice (2) qualifications (a) lawyer must be a member of the bar (b) must be able to afford the lawyer (see above) (c) the lawyer can refuse to represent the who tried to retain him (d) court can disqualify counsel of choice for conflict (e) can‟t use forfeited money Disqualification of ‟s Counsel of Choice a) Wheat v. US (1988, p. 1097)—6th Am. not violated where DC judge refused to accept the waiver of right to conflict-free representation (1) facts: (a) lawyer was to represent 2 co-s in same drug conspiracy (b) seeks to waive right to conflict-free counsel (2) court: (a) rejects ‟s argument that VKI waiver cures any problem (b) difficult for trial judge to decide conflict issues before-hand (i) district court judge must have discretion (ii) the DC could have reached the opposite result with equal justification (c) policy: “institutional interest in the rendition of just verdict in criminal cases may be jeopardized by unregulated multiple representation” (3) dissent: conflicts are waivable (a) there is a presumption in favor of counsel of choice (b) that presumption not overcome in this case (c) on the facts, the prosecution fabricated a non-real conflict (d) district court abused its discretion. b) US v. Stites (9th Cir. 1995, p. 1103) (1) facts: (a) counsel represented 1 co- by blaming the absent co- (b) then the absent co- reappeared and sought counsel‟s representation (c) district court says no way (2) 9th Cir: (a) upholds trial court‟s disqualification of defense counsel (b) “nothing in our professional ethics permits an advocate to tell a court one set of facts today and a contradictory set of facts tomorrow” c) US v. Locascio (1993, 2d Cir., p. 1104) (1) Gotti‟s lawyer disqualified by DC (2) affirmed by 2nd Cir. (a) lawyer was house counsel his representation of various conspirators who had not retained him was itself evidence of conspiracy (b) lawyer was on tapes government was going to presentlawyer would be unsworn witness when contesting meaning of tapes (3) pundits: government disqualified lawyer because he was too good Captain and Drysdale v. US (1989, p. 1105)--forfeiture statute is constitutional without exception for attorney‟s fees
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theory: A has no right to use B‟s money to pay C (1) A is (a) has no right to money illegally obtained (b) purpose of RICO was to lessen the economic power of criminal syndicates (c) having money does not mean no right to counsel, just no right to expensive counsel (2) B is government (a) government asserts its right to the money (b) forfeiture laws based on the theory that the property is forfeited to the government at the moment of the illegal act (relation back theory) (c) also, not just taking the money away: funding law enforcement (3) C is lawyer b) majority (1) decimating the pricy criminal defense bar may be unwise but it is not unconstitutional (2) due process clause will not be used to add an overlay to the explicit rights guaranteed in bill of rights (3) law is not facially invalid c) dissent: (1) inequality of resources (indigent defense vs. government) (2) importance of the private defense bar as the most effective defense against oppressive government (especially on constitutional issues) a) F. Right to self-representation 1. Introduction a) the cognate of the right to counsel is the right to not have counsel b) Faretta right: right to waive 6th Amendment right to counsel c) Faretta waiver: assertion of 6th Amendment right to counsel is de facto waiver of Farretta right to defend self The Constitutional Right a) Faretta v. California (1975, p. 1114) (1) Court: (a) 6th Amendment (i) grants to the accused personally the right to make his own defense (ii) grants right to assistance of counsel (b) BUT protecting persons from their own foolish choice (i) VKI waiver analysis (a) waiving right to appointed counsel (indigent) or counsel of choice (if $) = Farretta right (b) also waiving right to competent counsel (ii) standby counsel (a) sometimes they must be appointed (b) but once they are appointed, they can‟t be so intrusive as to deprive of Faretta right (2) dissent: (a) should not constitutionalize what is thought to be good policy (b) tension between personal autonomy and reliable outcomes should be resolved in favor of reliable outcomes b) waiver analysis (1) Godinez v. Moran (1993, p. 1118): the test of competence to waive right to counsel (a) SC‟s test (i) able to consult lawyer “with a reasonable degree of rational understanding” (ii) “rational as well as a factual understanding of the proceedings against him” (iii) same standard as competency to stand trial (b) rejected alternative test of lower court and dissent
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(i) capacity to make the reasoned choice among the alternatives available (ii) this is a higher standard (iii) arg: standard should be higher because there will be no lawyer for the to consult (2) Knowing and Intelligent Waiver (a) need for VKI waiver actually give judges more discretion to decide on validity of waiver (more than just competency analysis) (b) note: no duty to advise that they have right to defend self (i) we get Faretta waivers all the time, by failing to advise s that they have Faretta right (ii) how to rationalize this? it is not a preferred right; it has potential harm (iii) BUT this erodes the validity of calling it a full-blown constitutional right (3) Requirement of unequivocal invocation of right to defend self c) Remedy for a Faretta violation (1) per se reversal: right to personal autonomy has nothing to do with the actual competence with which counsel conducted trial and has nothing to do with the strength of the case (2) no such thing as harmless error Limits of the Right a) right must be invoked in a timely manner b) must not disrupt court c) protection of witnesses = analog to limitation on right to confront witnesses (Craig v. Maryland , 1990, p. 1125) d) Standby Counsel (1) Faretta indicated that appointment of standby counsel can be made over the ‟s objection (a) lawyer may make strategic choices opposed by without violating Farretta (b) BUT the Farretta right can be violated by the over-involvement of standby counsel (i) has the right to control the defense in some measure (ii) also has the right to appear to the jury to be doing so (2) McKaskle v. Wiggins (1984, p. 1126) (a) SC: no reversal (i) because most of the collisions were resolved in favor of the (ii) and because most of the collisions were out of the presence of the jury (b) dissent: (i) squabbles might have affected the outcome subtly (ii) squabbles hurt the ‟s perception of fairness, which is one of the elements of the Farretta right. Shaffer doesn‟t think the right is worth the candle a) we risk unreliable trials b) hard for government to accommodate both the right to self-representation and the right to counsel at the same time (as demonstrated by the whole standby counsel muddle)
III. Discovery A. Statutory Scheme: Federal Rules of Criminal Procedure 1. R. 16(a)(1)(A): requires the disclosure of ‟s own statements a) arguments for: (1) injustice of non-disclosuremisleading the lawyer (2) no danger b) arguments against: the should know what he said 2. Other R. 16(a) requirements: a) ‟s prior record b) documents and other tangible objects which are material or intended for use by the government in its case in chief, or which were obtained from or belong to the c) reports of examinations and tests which are material to the defense or intended for use by the government in its case in chief d) summary of testimony of expert witnesses who the government intends to call in its case in chief
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16(b) requirement: discovery by prosecution is reciprocal only a) documents and tangible objects b) reports of exams and tests c) expert witnesses
B. Other recommendations 1. co-s‟ statements a) arguments against (1) not required by FedRCrimPro (2) might put co- in danger b) arguments for (1) ABA std § 11-2.1(a)(i): recommend it (written by defense bar) (2) no danger (?) c) Bruton v. US (1968, p. 774) (1) 6th Amendment confrontation problem, because co- can‟t cross-exam on hearsay statement (2) and curative instructions insufficient to avoid imputation (3) BUT the solution to this problem is separate trial, not discovery 2. Names and addresses of witnesses—most controversial category a) arguments against (1) danger (2) also risk of persuasion, bribes, etc. b) possible case-by-case analysis (1) would always be able to make case in organized crime cases (2) but would be harder in other less dramatic cases c) AS: no way d) note: Jencks Act (1) Jencks v. US (1957, p. 778) (a) Court exercises supervisory power to require disclosure during the trial of the prior statements of prosecution witnesses (b) Court rejected rule that showing of probable inconsistency be required too difficult to prove without access to statement (2) Jencks Act (a) requires government to disclose prosecution witness‟s pretrial statements, regardless of whether consistent of inconsistent (b) does not provide for advance notification (c) statement must be disclosed, on ‟s motion, after the witness testifies on direct examination (d) statement: (i) written statements approved by witness, transcripts, statements to grand jury (ii) relate to subject matter of witness‟s testimony (determined by in camera review) C. Constitutional Law: The Prosecutor’s Duty to Disclose 1. The Brady Rule a) Disclosure of False Evidence (Mooney, Pyle, Alcorta) b) Brady v. Maryland (1963, p. 783)—mandatory disclosure of materially exculpatory evidence (1) Maryland Court of Appeals: post-conviction claim (2) SC: “A prosecution that withholds evidence on demand of an accused which, if made available would tend to exculpate him or reduce the penalty helps shape a trial that bears heavily on the . That casts the prosecutor in the role of an architect of a proceeding that does not comport with the standards of justice.” c) Knowledge Attributable to the Prosecutor (Giglio v. US, 1972, p. 783) d) US v. Agurs (1976, p. 784)—materiality and defense request (1) SC‟s test for materiality
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(a) if the omitted evidence creates a reasonable doubt that did not otherwise exist (i) omission must be evaluated in the context of the entire record (ii) outcome oriented test (b) alternate formulations proposed by dissenters (i) Marshall: “the had the burden of demonstrating that there is a significant chance the withheld evidence, developed by skilled counsel, would have induced a reasonable doubt in the minds of enough jurors to avoid conviction” (ii) Stevens (in Bagley): any reasonable likelihood that the nondisclosure could have affected the judgment of the trier of fact (c) query: who do we assume the trier of fact is? (i) impact on the judgeprobably this one in reality (ii) impact on this jury should be this one (a) because this gives the the fullest remedy (b) judge would be able to take into consideration how long the jury took, etc. (iii) impact on the “reasonable” jury this is the standard in the harmless error context, because appellate court sees neither trial nor jury (2) relevance of a specific request for Brady material (a) note: Agurs did not involve a specific request; Bagley and Brady did (b) theory: (i) defense is more likely to be misled if they make a specific request and nothing is provided (ii) prosecutor is put on notice by the request (a) BUT SC says that notice is irrelevant, because any state actor‟s knowledge is imputed to the others, and lack of knowledge is no excuse (b) BUT Brady is not about the morality of the DA: it‟s about materiality/weight (c) the SC is opaque as to why a specific request is legally significant e) US v. Bagley (1985, p. 788)—refining materiality test (1) “Evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A „reasonable probability‟ is a probability sufficient to undermine confidence in the outcome” (2) adopted as IAC test in Strickland f) alternatives to Brady rule (1) in camera review of evidence before trial to decide whether there is Brady evidence (2) open file discovery of the prosecutor‟s file Applications of Brady a) Kyles v. Whitley (1995, p. 790)—fact-intensive application (1) SC reverses conviction and death sentence (a) suppressed evidence (i) pretrial statement from 2 eyewitnesses that showed ID s to be weak (ii) inconsistent statements by snitch that were ignored by investigating officer (iii) police report indicating ‟s car was not on the list of cars found at store after murder (b) four key aspects of materiality (i) no preponderance test reasonable probability test (ii) no sufficiency of evidence test possibility of acquittal test (iii) no harmless-error reviewsuppression of material evidence can‟t be harmless beyond a reasonable doubt (iv) suppressed evidence not to be considered item-by-itemevidence needs to be considered collectively (c) unawareness of the evidence is no excuse (d) no leeway to the prosecutor on the hind-sight issue (i) because doubts should be resolved in favor of disclosure (ii) and the standard is already materiality (2) dissent (a) agrees on the restatement of principles derived from Brady, Agurs, Bagley
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(b) disagrees on application: doesn‟t find the ‟s quadruple coincidence theory believablehe doesn‟t believe that the jury would have had any doubts b) Wood v. Bartholomew (1995, p. 794)—suppressed evidence that would have been inadmissible at trial (1) per curium opinion (2) no reversal of the conviction because (a) the suppressed evidence would have been inadmissible (polygraph form of impeachment evidence) (i) inadmissible Brady material can be material (a) leads (b) impeachment (ii) BUT here, strategy issue: defense wouldn‟t have gone after the witnesses anyway because they had too much bad stuff (b) also, suppressed evidence was not inconsistent with defense‟s theory, so would not have changed anything c) US v. Boyd (1995, 7th Cir. p. 797)—the power of Brady impeachment evidence (1) suppressed evidence (a) favors to the prosecution witnesses (b) evidence of perjury (drug use) (2) 7th Cir. upheld trial court‟s reversal of convictions (a) 2-part test (reformulates Bagley materiality test on the issue of impeachment): (i) Is there some reasonable probability that the jury would have acquitted on at least some counts had the jury disbelieved the testimony of the core government witnesses? (ii) Might the jury have disbelieved that testimony if they hadn‟t perjured themselves about their continued use of drugs and (or) if the government had revealed to the defense the witnesses‟ continued use of drugs and the favors the prosecution had extended to them (for cross-examination purposes)? (b) standard: highly deferential, abuse of discretion standard (c) cumulative evidence: (i) in all Brady cases that involve co-conspirator impeachment, prosecution will make argument that the impeachment value of the undisclosed evidence was effectively zero because the witnesses had already been thoroughly discredited (ii) BUT this argument failed in this case, because the theory of the prosecution‟s case was that the witnesses had seen the light, and the evidence goes against that. (iii) BUT did the jury really believe that they were now reformed? (3) Query: was the reversal really based on materiality or was it merely punishment for the prosecutor‟s outrageous behavior Is there a duty to preserve (potentially exculpatory) evidence? a) California v. Trombetta (1984, p. 802) (1) facts: cops didn‟t preserve breath samples, even though they could have (2) SC: “whatever duty the Constitution imposes on the States to preserve evidence, that duty must be limited to the evidence that might be expected to play a significant role in the suspect‟s defense” (a) no requirement to have/use high tech equipment (3) open question: if the evidence might be expected to play a significant role in the defense, will there be a Brady-like category creating a limited duty to preserve? b) Arizona v. Youngblood (1988, p. 803)—bad faith requirement (1) facts: neglected to refrigerate clothing to test the semen found on the clothing (2) SC: “unless a criminal can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law (a) no remedy for negligent loss of evidence (b) in reality, there will never be proof of bad faith (unless it‟s egregious)
D. Discovery by the Prosecution
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Williams v. Florida (1970, 804) a) facts: (1) Florida notice of alibi statute (2) reciprocal disclosure of alibi witnesses required (3) defense alibi witness impeached (4) challenges statute b) SC: statute violates neither due process or self-incrimination (1) due process (a) reciprocal (b) liberal discovery to in Florida (c) designed to enhance search for the truth: state‟s important interest in not having surprises (2) CTSI (a) analogy to choice between silence and testifying testimony is not compelled (i) not compelled to put in an alibi (ii) BUT if put in an alibi, will be at some cost (b) analogy to continuance at trial on the ground of surprisetestimony not compelled (i) avoids inconveniencing jury (ii) continuation would always be granted (c) FN in concurring opinion: only historical facts of a crime, not what the intends to do/say at trial not testimonial c) dissent: should be able to wait until state presents case before deciding whether to put on an alibi d) codification (1) FRCP 12.1: notice of alibi (a) note 12.1(f): inadmissibility of withdrawn alibi: not usable as prior inconsistent statement, civil or criminal, now or ever. (2) FRCP 12.2: notice of insanity defense or expert testimony of ‟s mental condition (3) FRCP 12.3: notice of defense based upon public authority Rule 16(b) covers both defense and prosecution (see above) Sanctions for Non-disclosure a) Taylor v. Illinois (1988, p. 808)—exclusion for failure to comply with notice requirement does not violate the 6th Amendment b) Michigan v. Lucas (1991, p. 808)—no exclusion (1) facts: (a) offers defense of consent in rape case (b) prior sexual relations evidence precluded because of failure to give notice (c) lower court: adopted a per se rule that preclusion of rape victim‟s prior sexual relationship with criminal violates 6th Amendment (2) SC: per se rule is inappropriate (a) notice requirement could serve a legitimate government purpose in some cases (b) ‟s violation of notice requirement could be so egregious as to warrant preclusion (c) open question: whether the requirement to give notice within 10 days of arraignment is arbitrary or disproportionate in light of the state‟s interest c) exclusion of defense evidence is not permissible whenever a discovery rule is violated, but 6th Amendment does not absolutely prohibit the sanction of exclusion in all cases US v. Nobles (1975, p. 809): Discovery At Trial a) facts: (1) bank robbery case (2) defense counsel sought to impeach the credibility of key prosecution witnesses by testimony of a defense investigator (3) 9th Cir: federal trial court may not compel the defense to reveal relevant portions of investigator‟s report for the prosecution‟s use of cross-examining him b) SC: OK to require disclosure (1) not CTSI
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(a) statements were made by 3rd parties (b) did not prepare the report himself (c) would not impinge on 5th Amendment “values” (policy rationale?) (2) Work product protection waived (a) materials prepared by attorney (b) materials prepared for attorney by agents (c) protection is waived by making use of the material as predicate to testimony (i) analogy to 5th Amendment: you can‟t choose to testify and then refuse crossexamination (3) sanction of preclusion is no 6th Amendment violation codification: FRCP 26.2: Production of Witness Statements (see pages 813-815) (1) Jencks Act covers only prosecution (see above) (2) Fed R.Evid 612: writing used to refresh memory (a) defers to Jencks Act (b) probably defers to FRCP 26.2 (3) FRCP 26.2 covers both prosecution and defense (4) note: (a) does not authorize disclosure of work product (b) does not require disclosure of statements unless witness testifies
IV. Guilty Pleas and Bargaining A. Introduction 1. Easterbrook a) imperfect/black markets are better than no market b) compromise is better than conflict c) s sell rights to prosecutor for a price: receive concessions they value more than the rights they sell d) benefit to society: prosecutor buys time to prosecute more people more effectively deterrence 2. Schulhofer a) harm to society: allows innocents to plead guilty b) disadvantages the indigent (1) underpaid lawyers (2) shortcuts hidden from view (3) trials will expose the lack of resources c) hypothesis: risk-averse most likely to plea, so trials are misallocated (1) Query: what is our definition of innocence (‟s subjective belief?) (2) any empirical evidence? d) alternative: preset plea discounts BUT does this really root out the core evil? 3. All agree that those who Plea should get less penalty a) theory: early acceptance of responsibility is good b) BUT: if there is a 6th Amendment right to a trial, aren‟t we penalizing people for insisting on their constitutional right? (1) US v. Medina-Cervantes (9th Cir. 1982, p. 821) (a) trial court judge: imposed a fine to reimburse government for cost of trial, because undocumented immigrant was “thumbing his nose at our judicial system” by insisting on trial (b) court of appeals remand for resentencing: “It is well settled that an accused may not be subjected to more severe punishment simply because he exercised his right to stand trial” (2) Scott v. US (1969, DC Cir., p. 822) (a) trial court said, “ if you‟d pleaded guilty, I might have given you a lighter sentence” (b) DC Cir (Bazelon): upheld sentence (i) analyzed case with a point-in-time analysis (ii) because hind-sight analysis discounts risk analysis
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(iii) (allowed Bazelon to uphold sentence without insisting on importance of repentance, which he said was for after trial) c) FSG and acceptance of responsibility (1) 3E1.1: reduces sentences 2 levels or 3 for very prompt pleas (25-40%) (2) 20% of those who go to trial still get acceptance of responsibility reductions (3) 3E1.1 does not impinge on 6th Amendment right to trial (a) no penalty for going to trial (b) only a reward for pleading (4) Discretion to charge (a) pre-Reno: AUSA‟s must charge highest possible charge (b) Reno: any charge, so discretion is back in the picture Efficiency at what price a) how to do the math? b) what is the prosecutor‟s ethical duty c) what are the ethics of plea bargaining d) legal innocence vs. factual innocence Inverted Sentencing: big fish get lighter sentences than little fish Overcharging a) Bordenkircher v. Hayes (1978, p. 828) (1) facts: (a) indicted for passing a fake check (b) 3 strikes statute: prosecutor says if doesn‟t plead, I‟m going to reindict you as a habitual offender (c) life sentence (2) SC: OK (a) prosecutor could have indicted as habitual offender in the 1 st place and then offered a plea to forgery (b) court sees no difference in timing! (3) dissent‟s problem is not really about guilty pleas; the problem is with the sentences (a) SC has rejected cruel and unusual punishment challenges (b) proportionality is a legislative choice, not a constitutional guarantee b) AS: with opposite rule, then prosecutors will always indict as habitual offender in the first place
B. The Requirements for a Valid Guilty Plea 1. The requirement for some kind of record a) McCarthy v. US (1969, p. 829) and Boykin v. Alabama (1969, p. 829) (1) guilty plea is no good because there was no record can‟t tell if there was a VKI waiver of constitutional rights (a) 5th Am: right against CTSI (b) 6th Am: trial by jury (c) 6th Am: confrontation (2) court had 2 choices: (a) remand and vacate plea (b) remand for a hearing as to VKI waiver (c) reject retrospective analysis to see whether waiver was VKI: training lower courts to do it right the first time b) Boykin has not been rigorously applied erosion (1) Ferguson (7th Cir 1991, p. 830): relied on custom, practice and law to uphold guilty plea, despite absence of transcript of hearing (2) Guilty Pleas Used for Enhancement of Sentence: Parke v. Raley (1992, p. 830) (a) SC sustains presumption of validity of plea in Kentucky (i) habeas, not direct (ii) passage of time
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(iii) never contested original appeal presumption of validity of final judgments trumps presumption of invalidity of silent record (b) note: federal sentencing guidelines puts burden of persuasion on defendant to prove invalid plea to get lesser sentence (3) Attacking a State Guilty Plea in Federal Court: Custis v. US (1994, p. 831) (a) can‟t challenge state guilty plea in federal court (enhancement), except in cases of complete absence of counsel (b) “convenience argument” only (c) dissent: no difference between lack of counsel and invalid guilty plea c) SUM (1) importance of record: constitutional and FRCP 11 (2) presumption of invalidity without record, but can be overcome in many ways (3) court worried about stale record and inconvenience of reexamination VKI Pleas a) Are Package Deals Voluntary? (1) US v. Pollard (DC Cir 1992, p. 833) (a) wired plea upheld: government did not behave in an unlawful manner (b) the impact of the wife‟s illness on the mind of the defendant is not illegal pressure from the government (c) still VKI plea in open court (2) US v. Caro (9th Cir 1993, p. 833) (a) package deal plea invalidated (b) judge did not know that there was a package deal, so the judge couldn‟t scrutinize the voluntariness b) Knowing and Intelligent? (1) Henderson v. Morgan (1976, p. 834)-- must know elements of crime (a) plea held invalid because did not know the elements of crime (b) murder case: didn‟t know that intent to kill was an element of the crime (c) general rule: must know each of the elements of the crime to which he is pleading guilty (i) BUT “crucial elements” only (ii) in aiding and abetting case it‟s OK just to tell elements of the underlying crimes (US v. Wildes, 7th Cir 1990, p. 835) (2) must know penal consequences (a) p. 835: must know penalty: sentencing possibilities (b) p. 835: BUT need not know “collateral consequences” (3) pleading guilty to something that isn‟t a crime: US v. Briggs (1991, 5th Cir. p. 835) (a) record of plea colloquy did not establish facts sufficient to find the element of fraud (b) 5th Cir: “to convict someone of a crime on the basis of conduct that does not constitute a crime offends the basic notions of justice and fair play embodied in the Constitution” (c) on remand, was still found to have validly plead: missing element was found by implication c) Competency to plead guilty: Godinez v. Moran (1993, p. 836) (1) 9th Cir.: capacity for reasoned choice; greater than to stand trial (2) SC: capacity for rational understanding (a) same competency standard to plead guilty, waive counsel, and stand trial (b) BUT since VKI are also required, the standard is actually higher than standing trial (like waiving counsel) d) “secret promises”: Blackledge v. Allison (1977, p. 838) (1) facts: (a) deal was for 10 years (b) but defendant doesn‟t say that the deal was made, because he think it‟s secret (c) judge: 17-21 years (d) seeks habeas relief (2) SC: had right to hear claim head
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(3) cure: ask each person, including lawyers harder for to lie Regulating Guilty Pleas Under FRCP 11 a) Rule 11 (a) alternatives (i) not guilty, guilty, nolo contendre (ii) condition pleas: may be withdrawn if prevails on appeal of pre-trial motion (b) nolo contendre: only with consent of court (c) advice to : Court must address personally in open court (i) nature of charge; penalty (ii) right to counsel (iii) rights to plead not guilty, jury trial, assistance of counsel, confront witnesses, against CTSI (iv) waiver (v) answers to questions can be used in prosecution for perjury false statement (d) insuring that the plea is voluntary (e) plea agreement procedure (i) 3 options (a) prosecutor will move to dismiss other charges OR (b) make a recommendation or agree not to oppose ‟s request as to sentence, BUT not binding on court (c) agree that a specific sentence is appropriate disposition of case (d) court shall not participate in any such discussions (ii) notice (iii) acceptance (iv) rejection (v) timing (vi) inadmissibility (f) determining accuracy of (factual basis for) plea (g) recording of proceedings (h) harmless error b) Rule 11 and the judge (1) 11(e)(4): judge may reject plea bargain (a) if option A or C, can withdraw plea (b) if option B, can not withdraw plea (c) how meaningful is requirement that court not participate in plea discussions, given the judge‟s ultimate power to accept or reject? (2) US v. Miles (1993, 5th Cir., p. 842) (a) judge suggested terms of plea that would be acceptable plea vacated (b) BUT this is OK in most state courts Claims of Innocence: North Carolina v. Alford (1970, p. 842)--Alford pleas a) since plea is VKI valid b) factual basis (1) rationalization: legal guilt factual guilt (2) all of the elements are provable (prosecution‟s offer of proof) c) it is reasonable for a person in the ‟s position to plead guilty
C.
Finality of Guilty Pleas 1. Withdrawal of a plea a) standards for withdrawal after sentencing (1) under rule 32(d) judgment rule, may withdraw in order “to correct manifest injustice” (VKI negated in some demonstrable way) (2) courts reluctant to find manifest injustice, because of likelihood of prejudice to prosecution b) standard for withdrawal before sentencing (1) under rule 32(e) plea withdrawal rule, may withdraw for “any fair and just reason”
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(2) BUT courts roundly reject if ‟s reason is reevaluation of strength of government‟s case or a dawning awareness of sentence c) US v. Hyde (1997, p. 45 of supplement)--no absolute right to withdraw plea before sentencing in B type plea bargains Prosecutor‟s withdrawal of offer after accepts but before judge accepts (p. 845, fn 18) a) until accepted by court, the offer has no constitutional significance so prosecutor can withdraw b) EXCEPT in cases of detrimental reliance where prosecutor may not be able to withdraw c) analogies between plea bargaining and K imperfect: judge has not ratified it yet, so no K Remedies for Breach of Bargain a) if makes even a partial attack on the guilty plea can be a total erasure of the bargainthe prosecutor can bring the dropped charges back b) Santobello v. NY (1971, p. 845): remedy for breach of bargain by prosecution (1) facts: (a) 1st prosecutor agreed to make no recommendation on sentencing (b) 2nd prosecutor breaches (2) SC: not OK (a) even an inadvertent breach of a plea agreement is unacceptable (b) remedy: remand with state court‟s option to withdraw guilty plea or be resentenced by a different judge (option is court‟s) (3) note: lost the benefit of the bargain, which was to bargain before judge A (a) now he was going to have to bargain before judge B (b) since impossible to get the benefit of the bargain, wants the option to be his c) Ricketts v. Adamson (1987, p. 847)--‟s breach (1) facts: (a) enters guilty plea in return for specific prison term (b) subsequently “violated” plea agreement by refusing to testify in 2nd trial after remand (c) state filed a new information, convicted of 1st degree murder, sentenced to death (2) SC: double jeopardy clause does not bar state from filing the capital charge (3) dissent: no breach of plea agreement (and no conscious decision to violate) appeal and collateral attack a) in many jurisdiction, a VKI plea is a waiver of all claims the pleader has b) SC: that is OK, unless not adequately represented by counsel (Brady, McMann, Parker, Yollett, p. 849) c) BUT then SC says sometimes guilty pleas cannot bar subsequent collateral attacks (1) Blackledge v. Perry (1974, p. 849)—prison inmate can attack plea to felony on ground that prosecutor acted improperly in retaliating against by raising charge from misdemeanor to felony (2) Menna v. New York (1975, p. 849)-- who pleaded guilty did not lose the right to challenge the plea as violation of double jeopardy rights d) BUT US v. Broce (1989, p. 850) no double jeopardy claim without contradicting pleas, so no collateral attack allowed conditional pleas: R. 11(a)(2)
V. TRIAL PROOF A. Proof Beyond A Reasonable Doubt: In Re Winship (1970, p. 889) 1. importance of proof beyond a reasonable doubt in American system of criminal justice 2. standard of proof is attempt to instruct the factfinders in the degree of confidence they should have in the correctness of factual adjudication 3. the choice of the standard determines how many erroneous decisions will be made 4. error has to favor criminal , unlike in a civil case B. Reasonable Doubt and Jury Instructions 1. Cage v. Louisiana (1990, p. 892) not OK 2. Sandoval v. California (1994, p. 893) OK
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Victor v. Nebraska (1994, p. 893)OK look at the phrases that the courts have a problem with a) impossible to distinguish cases: they‟re identical b) SC looks to the charge as a whole and refuses to let isolated words and phrases to poison the whole thing SC saving convictions
C. The Scope of the Reasonable Doubt Requirement 1. impermissible burden-shifting: Mullaney v. Wilbur (1975, p. 896) a) Maine: required charged with murder to prove he acted in the heat of passion or sudden provocation to reduce homicide to manslaughter (1) prosecution: intentional and unlawful, beyond a reasonable doubt (2) defense: heat of passion or sudden provocation, preponderance b) SC: not OK (1) “the due process clause requires the prosecution to prove beyond a reasonable doubt the absence of heat of passion or sudden provocation” (2) Maine criminal law draws distinctions on the basis of degrees of criminal culpability: prosecution must bear burden to prove all elements beyond a reasonably doubt (3) mandated by Winship 2. flexibility to define the elements of the crime: Patterson v. NY (1977, p. 897) a) NY: placed burden on to prove extreme emotional disturbance in order to reduce second degree murder to manslaughter (1) prosecution: intentional homicide, beyond a reasonable doubt (2) defense: extreme emotional disturbance, preponderance b) SC: OK (1) “the due process clause, as we see it, does not put NY to the choice of abandoning those defenses or undertaking to disprove their existence in order to convict of a crime which otherwise is within its constitutional powers to sanction by substantial punishment” (2) doesn‟t decimate Winship, because there are still some constitutional limits to legislative action c) dissent: stigma (1) a state could define all murder/manslaughter by death, intent to kill, causation, with no lessened culpability (2) but once a state decides to create gradations of culpability, they can not shift burdens of persuasion (3) also: element in question had historical importance (why this requirement?) (4) can‟t convict of crime of greater stigma without bearing the burden of proving the element that heightens stigma 3. most commentators think that Mullaney and Patterson are irreconcilable Patterson is followed 4. Martin v. Ohio (1987, p. 900)--Burden of Persuasion on Self-Defense is OK a) Ohio: (1) prosecutor: murder committed with prior calculation and design and purposefully, beyond a reasonable doubt (2) defense: self-defense, preponderance b) tension: risk of jury confusion (1) if doesn‟t carry its burden then jury might think that‟s enough for mens rea (2) self-defense evidence can create a reasonable doubt about mens rea, without proving selfdefense c) SC: that‟s OK 5. McMillan v. Pennsylvania (1986, p. 902)--Preponderance of Evidence Standard at Sentencing is OK a) SC: OK to increase sentence for visibility of gun proven only by a preponderance and found only by a judge (1) OK, because it is not an element of the crime (2) note: sentencing is often found by preponderance and judge
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b) dissent: special stigma and punishment are involved must be found beyond a reasonable doubt (echo of Powell) Montana v. Egelhoff (1996, p. 46 supp)--Precluding Voluntary Intoxication as a Defense to Mens Rea is OK a) theories (1) redefinition of mens rea of crime (2) evidentiary exclusionary rule regarding voluntary intoxication b) SC: OK (1) opinions (a) plurality (4): evidence rule derived from the common law OK (i) also says Ginsberg‟s theory is OK (b) Ginsberg: redefinition of mens rea + long tradition in common law OK (c) O‟Connor‟s dissent: (i) it would have been OK if it was a redefinition (ii) it is an evidence rulenot OK (d) Souter‟s dissent (i) it would have been OK if it was a redefinition (ii) Minnesota SC says that it was evidence rule not OK (e) Breyer/Stevens dissent (i) statutory redefinition, which when applied appears to be capricious not OK (ii) like cases should have like outcomes (iii) state has power to rewrite a statute, but not capriciously (2) note: all but Breyer/Stevens say it‟s OK if a redefinition of the crime interesting policy arguments: a) Mullaney eliminate all affirmative defenses b) what looks like a benefit is actually a burden
D. Proof of Alternative Means of Committing a Single Crime 1. Schad v. Arizona (1991, p. 906) a) 2 different theories of homicide: (1) premeditation (2) felony-murder (3) different levels of intent b) SC upholds conviction: OK to define crime in the alternative, as long as each form is equally blame-worthy. c) BUT: doesn‟t this violate Winship? (1) moral equivalence is not proving elements beyond a reasonable doubt. (2) it is not a unanimous verdict on a single set of facts US v. Harris (DC Cir. 1992, p. 907) a) convicted of conspiring with 5 b) DC Cir: OK even if each jury thought it was a different set of 5
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E. Presumptions 1. Definitions a) presumption: judicially recognized inference (situations in which the court instructs a jury that proof of one fact entitles the jury to infer, assume, or presume the existence of another fact) b) permissive low risk, because court only says inference is allowed c) mandatory and irrebuttableprobably a violation of Winship and jury trial right, because if jury finds one fact, the other must be presumed d) mandatory and rebuttable most questions are here, because the jury is told they have to make the inference, but then the can/must rebut it potential constitutional risks presented by the use of presumptions a) burden-shifting (no proof) Winship problem, because no proof beyond a reasonable doubt
2.
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b) undermines jury trial right c) if an impermissible presumption has been used, can not be harmless error (1) strength of the prosecution‟s evidence may not have even been a factor (2) jury might have ignored evidence because of the presumption permissibility of mandatory and rebuttable presumption a) test: in the run of the mill case, what is the strength of the connection between the proven fact and the presumed fact? b) Leary v. US (1969, p. 910 fn b)—run of the mill case (1) element of crime: “knowing it was legally imported” (2) mandatory presumption: possession implied knowledge of importation (3) SC: presumption is impermissible (a) not logical, because most people who possess pot do not know that it was imported (b) it doesn‟t matter that Timothy Leary probably would know c) County Court v. Allen (1979, p. 908)—importance of jury instructions (1) presumption: being a passenger in a car with an illegal firearm is possession of the firearm (2) SC: presumption is permissible (conviction is affirmed) (a) jury instructions demonstrate that presumption was permissive: presumption can be ignored even if there was no affirmative proof offered by the in rebuttal (b) dissent: even as a permissive presumption, the connection suggested is illogical d) test appears to be: (1) logic must be more likely than not before the presumption is usable at all (2) jury instruction still needs to say standard as a whole is beyond a reasonable doubt Errors in Jury Charges (shifting the burden on intent) a) Sandstrom v. Montana (1979, p. 913) (1) charge to the jury: “the law presumes that a person intends the ordinary consequence of her voluntary acts” (2) could mean: (a) direction to find intent once voluntary action is found, unless proven by otherwise not OK (b) not rebuttable not OK (c) permissive OK (3) SC: charge is invalid, because 2 out of 3 meanings would be impermissible b) Question: could a Sandstrom error ever be harmless beyond a reasonable doubt? (1) yes, in the narrow category of cases where the predicate facts relied on in the jury instruction plus other facts necessarily found are so closely related to the ultimate fact to be presumed that no rational jury could find predicate without finding the presumed facts c) Francis v. Franklin (1985, p. 913) (1) charge to the jury: “The acts of a person of sound mind and discretion are presumed to be the product of the person‟s will, but the presumption may be rebutted. A person of sound mind and discretion is presumed to intent the natural and probable consequences of his acts but the presumption may be rebutted” (2) SC: charge is invalid because a reasonable juror could have concluded that it was to find the presumption unless the persuaded to juror it should not find intent (3) dissent: (a) the balance of the charge made it OK you have to look at the instruction as a whole (b) standard should not be what a juror could have thought, but what a juror was likely to have thought
VI. Trial by Jury A. Constitution 1. Art III, §2: “The trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.”
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6th Am: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed . . .” a) cross-sectionality (of jury venire) [ neutrality of petit jury] b) impartiality (of petit jury)
B. When do you get a Jury? 1. 2. 3. if jail for more than 6 months is a possibility (Blanton v. City of North Las Vegas, 1989, p. 919) if jail for less than 6 months still ONLY IF penalties are so severe that the offense is clearly “serious” really hard to prove (US v. Nachtigal, 1993, p. 920) note: prosecutor can avoid jury by charging multiple petty offenses in a single case, even if the aggregate sentence would be more than 6 months a) because there could have been separate trials b) legislative determinations that offenses are petty control c) Kennedy/Breyer concurrence: (1) in this case, the court committed in advance not to sentence more than 6 months (2) emphasized importance of jury trial right
C. What does a Jury decide? 1. 2. elements of a crime are tried to juries must be proved beyond a reasonable doubt US v. Gaudin (1995, p. 920) a) facts: (1) one of the elements of 18 USC §1001 is materiality (2) trial judge instructed jury that the ‟s statements were material within the meaning of the statute b) SC: not OK, because jury has to decide the elements c) concurrence: but there is nothing immutable about the elements, so legislature could define the law in such a way as to remove issues such as materiality from the jury
D. Requisite Features of the Jury 1. State Court Juries a) size (1) Williams v. Florida (1970, p. 921) (a) 6-person jury is OK (b) theories: (i) interposition function fulfilled by 6 person jury (ii) 6 can still provide fair possibility of obtaining a cross-section of community (iii) 6 is large enough to foster deliberation (iv) the reliability of the verdict is not affected by the reduction in size (2) Ballew v. Georgia (1978, p. 924) (a) 5-person jury is not OK (b) theories: (i) data shows smaller juries lead to less effective deliberation (ii) more likely to be inaccurate (iii) more intimidation because smaller minority (c) all of the factors contradict those in Williams, but 6 person juries are still valid b) Unanimity (1) Apodaca v. Oregon (1972, p. 927) (a) state court: 10-2 verdict is OK (b) SC rejects arguments about potential harms of nonunanimous verdict: (i) beyond a reasonable doubt requirement: aggregation of minds did not find guilt beyond a reasonable doubt (ii) process is affected by not having to agree: jury can ignore the minority views
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c)
Question: what effect do these cases (size and unanimity) have on a federal jury? (1) How can the 6th Amendemnt mean one thing for the states and another for the federal system? (2) Incorporation is not jot for jot (3) FRCP require unanimous 12-person jury
2.
fair cross-section requirement a) constitutional source: 6th Amendment b) does not apply to petit jury (Holland v. Illinois, 1990, p. 934) (1) BUT see fn 35: Equal Protection Clause limits on the exercise of peremptory challenges limits this principle (2) note: it is the EP clause, not the 6th Amendment that imposes restrictions on the composition of the petit jury c) applies to jury venire (1) Taylor v. Louisiana (1975, p. 935) (a) Louisiana only required women to participate on jury if they volunteered (b) SC: not OK (i) that is a violation of 6th Amendment (a) dramatic underrepresentation of women violates 6th Amendment (b) not all the points of view of society represented without women (c) women are both numerous and distinctive (ii) man has standing to challenge, because claim is 6th Amendment ‟s right to fair cross-section (2) Duren v. Missouri (1979, p. 937)—Prima Facie case of improper exclusion (a) distinctive group within community (b) underrepresented (i) fair and reasonable representation required (ii) numerosity in community is not required (c) systematic exclusion (3) characteristics of distinctive or cognizable groups for 6 th am purposes (a) US v. Fletcher (9th Cir., 1992, p. 937) (i) test: (a) defined and limited by a factor (like race and sex) (b) common thread or basic similarity in attitude (c) community of interest that won‟t otherwise be adequately represented (ii) college students are not a distinctive group (b) Anaya v. Hansen (1st Cir., 1986, p. 937) (i) blue collar workers not cognizable (ii) young adults not cognizable (iii) not clear that they don‟t satisfy the 3-part requirement (c) BUT note: supervisory power may recognize groups that are not constitutionally cognizable voir dire a) purpose: get insight for challenges for cause and peremptory challenges b) questions concerning race prejudice (1) Ham v. South Carolina (1973, p. 941) (a) facts: (i) black bearded (ii) drug charges (defense theory: drugs were planted) (iii) civil rights activist (iv) asked for voir dire questions about racial prejudice trial judge refused (b) SC: DP violation for failure to ask any question about racial prejudice constitutional requirement (i) no per se rule: case by case basis
3.
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c)
(ii) required in this case because of activity in civil rights movement (iii) note: question as to beards not constitutionally required (a) within trial court‟s discretion to not ask about beard (b) Douglas dissents: questions about beards important in 1973 (2) Ristaino v. Ross (1976, p. 942) (a) facts: (i) black (ii) violent crime against white security guard (b) SC: not reversible error to refuse to ask questions about racial prejudice (i) defer to trial court‟s discretion (SC would have used its supervisory power to require federal court to ask question, but not constitutional error) (ii) Ham distinguished: racial issues not inextricably bound up with trial here (!?) (3) Rosales-Lopez v. US (1981, p. 944) (a) facts: (i) was Mexican immigrant charged with alien smuggling (ii) trial judge asked jurors about attitudes towards “alien problem” and aliens (iii) trial judge did not ask about racial or ethnic prejudices (b) SC OK (i) plurality: (a) it‟s usually best to allow questions into racial prejudice (b) but trial court not required to do so in every case (c) prior cases “fairly imply that federal trial courts must make such an inquiry when requested by a accused of a[n interracial] violent crime” supervisory rule that might be extended to other areas where race/ethnic prejudice might be a concern (ii) concurrence: defer to trial judge on scope of voir dire (iii) dissent: questions should have been asked (constitutional requirement?) (4) Turner v. Murray (1986, p. 944)—question required if requested in interracial capital case (a) facts: (i) black (ii) white man (iii) capital murder case (iv) trial judge refused ‟s request to voir dire prospective jurors on race prejudice (v) death penalty (b) SC: death penalty invalid (i) “a capital accused of an interracial crime is entitled to have prospective jurors informed of the race of the victim and questioned on the issue of racial bias” (ii) trail judge retains discretion as to form and number of questions (iii) must specifically ask for voir dire questions on race for requirement to kick in (c) note: all violent interracial crime or capital cases only? (i) plurality: capital sentencing phase makes the difference (ii) Brennan and Marshall: all violent interracial crime the need to screen for prejudicial pre-trial publicity: Mu‟Min v. Virginia (1991, p. 945) (1) facts (a) pre-trial publicity contemporaneous with Willy Horton controversy (b) state trial court questioned in panels of 4 so prospective jurors not asked about what they heard (c) those who sat silent when asked whether they could be fair were presumed to indicate yes (2) SC no constitutional violation because no fundamental unfairness (a) state trial court needn‟t ask jurors individually about pretrial publicity (b) federal supervisory rule which is stricter (c) burdensome to have individual questions (d) written questions give no demeanor exposure
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(3) O‟Connor‟s concurrence: trial court judge could have done more, but no constitutional violation (4) Marshall/Blackmun/Stevens‟ dissent: content based (individual) questions needed to assess impartiality (5) Kennedy‟s dissent: silence does not indicate “yes” (6) note: 5 justices (O,M,B,S,K) agree that trial judge did it wrong, just not reversible error deference to trial judge d) jurors‟ feelings about the death penalty: Morgan v. Illinois (1992, p. 946) (1) facts: (a) Illinois law (i) requires jury to unanimously find an aggravating circumstance “death eligible” (ii) then, jury “should consider” all mitigating circumstances (iii) then, jury should impose death sentence if “there are no mitigating factors sufficient to preclude” the death penalty in light of the aggravating factor(s). (b) voir dire (i) requested question whether jurors would automatically impose death penalty upon finding death-eligible (ii) trial court refused: generic questions as to following instructions and fairness were sufficient (2) SC: reversed capital conviction (or just sentence?) (a) SC departs from deferential Mu‟Min analysis (b) note: prosecutor asked for and got question about automatically voting against the death penalty lack of parallelism was probably the real problem (3) dissent: majority ignoring Mu‟Min fundamental fairness standard 4. Challenges for Cause a) Jurors who cannot be excused for cause: overexclusion is unconstitutional (1) willingness and ability to follow instructions as to the death penalty (a) Witherspoon v. Illinois (1968, p. 949): sentence for death cannot be carried out if the jury was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty. (b) Adams v. Texas (1980, p. 95): Texas procedure excluding jurors in a capital case who were unable to take an oath that the mandatory penalty of death or life imprisonment would not “affect [their] deliberations in any way” unconstitutional (c) legal key: (i) ultimate question is “can you follow the law?” (ii) can‟t excuse people who dislike death penalty, if that dislike didn‟t impair their ability to follow the law (d) BUT note: SC has refused to find that a jury is biased (in terms of finding in guilt phase) when it is “death qualified” (Lockhart v. McCree, 1986, p. 950; Buchanan v. Kentucky, 1987, p. 951) (2) limitation on Witherspoon: Wainwright v. Witt (1985, p. 951) (a) facts: (i) prospective juror indicated that personal beliefs concerning death penalty would “interfere” with her judging the guilt or innocence of the (ii) juror was excluded for cause (iii) argued that Witherspoon was violated, because she did not say she couldn‟t follow the law or be impartial (b) SC OK (i) deference to trial judge (ii) juror‟s view need not be “unmistakably clear” (iii) note: trial judge or defense attorney should have asked the follow-up question as to whether juror could follow law (c) dissent:
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(i) jury is not neutral death-friendly (ii) identifiable group is excluded from petit jury (3) effect of a Witherspoon violation: Gray v. Mississippi (1987, p. 953) (a) Witherspoon violation: erroneous exclusion of someone wanted in a capital case (b) SC: reverses sentence remand for new trial (i) Gray test: whether composition of jury panel as a whole could have been affected by the trial court‟s error (ii) per se rule: reversal of death sentence for improper exclusion never a harmless error (4) Ross v. Oklahoma (1988, p. 954)--BUT failure to excuse for cause is corrected by peremptory challenge (a) facts (i) juror who stated he would automatically vote for capital punishment not excused for cause (ii) exercised peremptory challenge (b) SC no remedy (i) under Gray test: error was not harmless, because it erroneously deprived of one of his peremptories should have remanded for new trial (ii) BUT Rehnquist reasons: peremptory challenges are not of constitutional dimension harmless error b) Jurors who must be excused for cause (pp 955-958) 5. Peremptory Challenges a) definition: challenge exercised without a reason stated, without inquiry, and without being subject to the court‟s control b) purposes: (1) remove extremes (2) acceptance of proceedings by litigants (3) correction of judicial errors of not excusing for cause c) constitutional limits on peremptory challenges (equal protection clause) (1) Swain v. Alabama (1965, p. 960) (a) prohibition against racial discrimination in picking juries (b) BUT creates evidentiary burden that was impossible to satisfy: needed to show proof of purposeful systemic discrimination (2) Batson v. Kentucky (1986, p. 960) (a) overrules evidentiary burden of Swain: (i) reversal for racial discrimination in the selection of petitioner‟s own jury (ii) Equal Protection Clause forbids prosecutor from challenging only on race or on the belief that blacks cannot be impartial (b) creates 3 part test (adopted from Texas Dept. of Community Affairs v. Burdine, 1981) (i) must show that totality of relevant facts give rise to inference of racial discrimination (PF case) (ii) Burden shifts to state to explain the racial exclusion as racially neutral (iii) must prove neutral explanation to be pretextual (c) remand: because trial judge had rejected motion out of hand (d) Justice Marshall‟s concurrence: (i) abolish the peremptory challenge (a) rejects alternative of peremptory challenge for only: criminal justice system must be neutral (ii) Batson not enough protection (a) prosecutor can always make up a neutral explanation (b) freebies: allows prosecutor to make a few free peremptory challenges based on race (e) literal language of Batson:
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(i) race (ii) prospective jurors of ‟s own race (iii) criminal cases (iv) limits on prosecution only d) applying Batson (1) Powers v. Ohio (1991, p. 966)--standing to assert Batson violation (a) white has standing to challenge exclusion of black jurors (b) theory: third party standing (i) litigant suffered injury in fact (a) doubt cast on integrity of judicial proceeding (b) Scalia‟s dissent: there is no injury when a white is tried by an all-white jury (ii) litigant has a close relationship with the third party (a) common interest in eliminating discrimination (b) relation developed though voir dire (c) weak (iii) some hindrance to actual victim to protect own interest (a) excluded juror doesn‟t care (2) Edmonson v. Leesville Concrete Co (1991)--extension to civil cases (a) state action: putting the power of the court behind the peremptory challenge (b) dissent: peremptory challenge is enclave of private action in government proceeding (c) AS: court is concerned with the larger issue of race discrimination (3) Georgia v. McCollum (1992, p. 969)--extension to challenges by criminal defense counsel (a) facts: (i) two white s (ii) charged with assault on 2 black victims (iii) prosecutor moves to stop counsel from exercising racially discriminatory peremptory challenges: (a) Batson not only concerned with minority s (b) also concerned with minority victims (b) SCBatson applies (i) harms are the same in each case public confidence equally undermined (ii) state action (Edmonson) (iii) no violation of the rights of criminal (a) peremptory challenge not constitutionally protected (b) does not lead to impartial jury (i) voir dire (ii) challenge for cause (iii) actual racial bias (iv) sufficient to protect against bias (iv) J. Thomas concurrence in judgment only (a) blacks will rue the day the court began to eliminate peremptory challenges (b) exalting rights of jurors over those of s (c) Dissents: (i) J. O‟Connor dissent (a) legal: no state action (Edmonson was wrong) (b) policy: counter to goal of Batson, advancing nondiscriminatory criminal justice (i) racially mixed jury is better for minority (ii) McCollum disallows using peremptory challenges to secure minority representation on the jury (iii) may force minority s to be tried by all white juries (ii) J. Scalia dissent (a) Edmonson was wrong (b) ages-old right of criminal to exercise peremptory challenges as they wish
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(4)
(5)
(6)
(7)
(i) elimination of discrimination (elimination of peremptory challenge) in competition with: (ii) protection of rights of criminal s (peremptory challenge as bulwark for s) (d) NAACP amicus (i) results in this case would not necessarily apply if s were black and peremptory challenge is used to exclude blacks (ii) BUT in State v. Knox (La. 1992, p. 971), state court held that McCollum controls when is black US v. Annigoni (9th Cir., 1995, p. 971)—no remedy for if peremptory challenge is erroneously denied (as a Batson violation) (a) always harmless error (i) peremptory challenge is not a constitutional right (ii) juror not biased (removable for cause) (b) Query: on what theory could get a remedy (i) Virginia law: outcome based test for harmless error (ii) so errors about the jury are always reversible because you can never prove that the verdict would have been the same J.E.B. v. Alabama (1994, p. 971)—Batson extends to gender (a) facts: (i) child support action brought against father (ii) state used strikes to remove men (b) legal test for gender discrimination: heightened scrutiny (i) no substantial relationship between gender and impartiality (ii) can not exercise peremptory challenges on the basis of gender only (iii) BUT note intentional discrimination only (no disparate impact protection: e.g., OK to strike nurses) (c) O‟Connor concurrence (i) emphasized costs of extension of Batson (ii) hypothetical: battered woman who couldn‟t exercise peremptory challenge to get men off of jury (iii) only government’s peremptory challenges should be limited Purkett v. Elem (1995, p. 975)—neutral explanations need not be plausible (a) CA: grants Batson relief (i) prima facie case demonstrated (ii) prosecutor‟s explanation (long unkempt hair, facial hair) not relevant to juror performance (b) SC: remands to get to third prong (i) neutral explanation need not be plausible (ii) burden on opponent is only to produce (iii) moving party carries burden of persuasion (c) dissent: (i) it‟s not too much to ask that the prosecutor‟s explanation be race neutral, reasonably specific, and trial related (ii) majority opinion demeans the values of Batson (iii) tension (a) reason need not be enough to justify challenge for cause (b) but reason must be more than silly Hernandez v. NY (1991, p. 976)—bilingualism is a neutral explanation (a) facts: bilingual Spanish-speakers struck (b) SC: (i) bilingualism is a legitimate non racial reason (ii) Equal Protection requires intentional discrimination, not disparate impact (iii) BUT also: sometimes language should be treated like race
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6.
Protecting the Integrity of Jury Deliberations a) Anonymous Juries (1) arguments (a) for: threat of tampering (b) against: keeping the jury anonymous is a sign to jurors of danger of tends to vitiate the impartiality (6th Amendment right) of jury (c) for: jurors are going to be scared at trial anyway, and anonymity might make them fairer (2) US v. Barnes (2d Cir., 1979, p. 979) approved trial court‟s decision to keep names and addresses of jurors from counsel and to bar defense counsel from asking about ethnic, religious background b) judicial influence on jury deliberations (1) US v. Neff (7th Cir., 1993, p. 980)—judge can‟t give jury facts not in evidence (2) Allen v. US (1896, p. 981)—breaking a deadlock (a) judges don‟t accept deadlocks they tell jury to deliberate more (b) BUT can‟t try to coerce the minority (i) so judge can‟t learn the split and then tell them to deliberate more (ii) modified Allen charge to be less coercive (a) judge must emphasize that both majority and minority have to listen to each other (b) judge must acknowledge that majority might be for acquittal (c) judge must say that it is OK to hold out for a conscientiously held belief (iii) almost never OK to give 2 Allen charges c) protecting against jury misconduct and outside influence (1) Tanner v. US (1987, p. 985)--evidentiary limitations on proof of jury misconduct (a) SC affirms conviction despite allegations that some jurors were drinking and sleeping (i) because not extraneous prejudicial information (606(b)) (ii) and no deprivation of competent juries there were other mechanisms to protect that right (b) fear: routine impeachment of jury verdicts (i) desire to protect jurors and jury deliberation (ii) desire to protect community trust in juries (2) after-acquired evidence: lies on voir dire (a) when lie suggests a zeal to serve violated impartiality requirement (b) when lie suggests embarrassment does not violate impartiality requirement Jury Nullification a) Goetz challenge: wanted jury instruction that said, “if you find . . .then you may. . .” (inviting nullification) b) US v. Thomas (1997, 2nd Cir.): courts can‟t allow nullification if it is in their power to prevent it
7.