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Criminal Procedure by MikeJenny

VIEWS: 29 PAGES: 55

									Criminal Procedure Outline

        Spencer Compton
          Spring 2010
I.   Regulating Charging Discretion of Prosecutors ................................................................................... 7
   A. Discretion Generally ....................................................................................................................... 7
   B. Limits on Decision Not to Prosecute ............................................................................................... 7
   C. Limits on Decision to Prosecute ...................................................................................................... 8
      1. Arbitrary Prosecution: No rational basis for prosecution ............................................................ 8
      2. Discrimination or Selective Enforcement: Equal Protection Test (Armstrong)........................... 8
      3. Vindictive Prosecution and Due Process ..................................................................................... 9
II. Bail and Pre-Trial Detention ................................................................................................................. 9
   A. Release Procedures and Rationale................................................................................................... 9
   B. Constitutional Right to Bail and Limits on Preventative Detention .............................................. 11
      1. 8th Amendment ........................................................................................................................... 11
      2. Substantive Due Process ............................................................................................................ 11
      3. Procedural Due Process.............................................................................................................. 11
III. Screening the Charge .......................................................................................................................... 11
   A. Preliminary Hearing v. Grand Jury Screening .............................................................................. 11
   B. Preliminary Hearings ..................................................................................................................... 13
   C. Grand Jury Basics .......................................................................................................................... 14
      1. Procedure.................................................................................................................................... 14
      2. Secrecy Rationale ....................................................................................................................... 14
      3. Suggested reforms ...................................................................................................................... 14
      4. Assessments of reforms.............................................................................................................. 14
   D. Challenging the Grand Jury........................................................................................................... 15
      1. Composition ............................................................................................................................... 15
      2. Evidentiary Limits ...................................................................................................................... 15
      3. Prosecutorial Misconduct ........................................................................................................... 16
      4. Remedies for Prosecutorial Violation of Statute or Rule ........................................................... 16
IV. Joinder................................................................................................................................................. 17
   A. Joining Offenses: Which May be Joined....................................................................................... 17
      1. Joining: Rule 8(a) ....................................................................................................................... 17
      2. Severance: Rule 14 ..................................................................................................................... 17
   B. Joining Defendants ........................................................................................................................... 18
      1. Rationale .................................................................................................................................... 18
      2. Statutory Limits.......................................................................................................................... 18
      3. Constitutional Limits ..................................................................................................................... 19
   C. Joining Offenses: What Must be Joined ........................................................................................ 19
      1. Double Jeopardy......................................................................................................................... 19
      2. Collateral Estoppel/Claim Preclusion ........................................................................................ 19
V. Regulating Delay ................................................................................................................................ 19
   A. Interests ......................................................................................................................................... 19
   B. Constitutional Limits ..................................................................................................................... 20
      1. Prior to charge ........................................................................................................................... 20
      2. Delay between charge and trial .................................................................................................. 20
   C. Statutory Regulation: Speedy Trial Act ........................................................................................ 21
      1. Starting the Clock ....................................................................................................................... 21



                                                                                                                                                             2
      2. Restarting the clock .................................................................................................................... 21
      3. Isolate periods of delay .............................................................................................................. 21
      4. Calculate time: if over time period, violation ............................................................................ 22
      5. Remedy ...................................................................................................................................... 22
VI. Right to Counsel ................................................................................................................................. 23
  A. Constitutional Right ...................................................................................................................... 23
      1. When Does Right to Counsel Apply? ........................................................................................ 23
      2. For What Types of Cases Is Counsel Required? ........................................................................ 24
  B. Waiver and Self-Representation .................................................................................................... 24
  C. Denial of Counsel .......................................................................................................................... 25
      1. Actual or constructive denial of the assistance of counsel presumed to result in prejudice ...... 25
      2. Interference: prejudice presumed ............................................................................................... 25
      3. Ineffective Assistance of Counsel .............................................................................................. 25
      4. Actual conflict of interest ........................................................................................................... 25
  D. Reforming Indigent Defense ......................................................................................................... 26
VII. ................................................................................................................................. Access to Evidence
                                                                                   27
  A. Introduction ................................................................................................................................... 27
  B. Defendant’s Constitutional and Statutory Rights to Discover Government Evidence.................. 27
      1. Constitutional Right (Brady; Bagley) ........................................................................................ 27
      2. Defendant’s Oral Statements, 16(a)(1)(A) ................................................................................. 28
      3. Defendant’s Written or Recorded Statements, 16(a)(1)(B) ....................................................... 28
      4. Statements to Undercover Agents are not discoverable ............................................................. 29
      5. Witness lists ............................................................................................................................... 29
      6. Statements of Others .................................................................................................................. 29
      7. D’s Prior Record, 16(a)(1)(D) .................................................................................................... 30
      8. Documents and Objects, 16(a)(1)(E) ......................................................................................... 30
      9. Expert Reports, Discoverable under 16(a)(1)(F) ....................................................................... 30
      10. Police reports ............................................................................................................................ 30
      11. Government reports memoranda or internal documents .......................................................... 30
      12. Depositions............................................................................................................................... 31
  C. Government’s Rights to Discover Defendant Evidence ................................................................ 31
      1. Rationale .................................................................................................................................... 31
      2. Limits ......................................................................................................................................... 31
      3. Notice of Defenses ..................................................................................................................... 31
      4. Witness Lists .............................................................................................................................. 32
      5. Witness Statements .................................................................................................................... 32
      6. Documents and Tangible Objects .............................................................................................. 32
      7. Scientific reports ........................................................................................................................ 32
  D. Remedies for Discovery Violations .............................................................................................. 33
      1. Violations by the Prosecution .................................................................................................... 33
      2. Violations by the Defendant....................................................................................................... 34
  E. Government’s Constitutional Duty to Preserve Evidence ............................................................. 34
      1. Access to witnesses .................................................................................................................... 34
      2. Undercover agents ...................................................................................................................... 35
      3. Preservation/Destruction of Physical Evidence ......................................................................... 35



                                                                                                                                                          3
     4. Sanctions .................................................................................................................................... 35
VIII. ............................................................................................................................. Pleas and Bargaining
                                                                                   35
  B. Due Process: Intelligent and Voluntary......................................................................................... 37
  C. Breach and Remedies for Breach .................................................................................................. 38
     1. Breach by Prosecution................................................................................................................ 38
     2. Remedy for Prosecution Breach................................................................................................. 39
     3. Breach by Defendant .................................................................................................................. 39
  D. Judge’s Role .................................................................................................................................. 39
IX. Trial by Jury........................................................................................................................................ 40
  A. Scope of the Right to Jury ............................................................................................................. 40
     1. Rationale: ................................................................................................................................... 40
     2. Waiver ........................................................................................................................................ 40
     3. For What Crimes? ...................................................................................................................... 40
     4. Sentencing .................................................................................................................................. 41
     5. Size ............................................................................................................................................. 41
     6. Unanimity................................................................................................................................... 41
     7. Nullification ............................................................................................................................... 41
     8. Legally Inconsistent Verdicts..................................................................................................... 41
     9. Juror misconduct ........................................................................................................................ 41
  B. Selecting the Venire: Cross-Section Right .................................................................................... 42
  C. Selecting the Jury from the Venire: Equal Protection ................................................................... 42
     1. For Cause Challenges ................................................................................................................. 42
     2. Questioning the Jurors ............................................................................................................... 43
     3. Peremptory Strikes ..................................................................................................................... 43
     4. Equal Protection Challenge to Peremptory Strikes (Batson) ..................................................... 43
X. Trial Rights ......................................................................................................................................... 44
  A. Presence ......................................................................................................................................... 44
     1. D may lose constitutional right to presence if ............................................................................ 44
     2. Which proceedings? ................................................................................................................... 44
     3. Visible Shackles ......................................................................................................................... 44
  B. Confrontation................................................................................................................................. 45
  C. Not to Testify................................................................................................................................. 45
     1. 5th Amendment right to be free from compelled testimony ....................................................... 45
     2. Jury Instructions ......................................................................................................................... 45
     3. Sentencing Judge........................................................................................................................ 45
     4. Prosecutor may not comment on D’s silence ............................................................................. 45
     5. D has a constitutional right To Testify....................................................................................... 45
  D. Limits on Argument ...................................................................................................................... 45
XI. Sentencing........................................................................................................................................... 46
  A. Introduction to Theories ................................................................................................................ 46
     2. Rehabilitation ............................................................................................................................. 46
     3. Deterrence .................................................................................................................................. 46
     4. Incapacitation ............................................................................................................................. 46
     5. Retribution ................................................................................................................................. 46
  B. Constraints on Sentencing Discretion ........................................................................................... 46



                                                                                                                                                           4
       1.    Prosecutor’s Discretion .............................................................................................................. 46
       2.    Of Judges .................................................................................................................................... 46
  C. Limits on Sentencing Info ............................................................................................................. 46
  D. Rights at Sentencing ...................................................................................................................... 47
      1. Right to be present ..................................................................................................................... 47
      2. Right to assistance of counsel .................................................................................................... 47
      3. Right to notice ............................................................................................................................ 47
      4. Right to present evidence ........................................................................................................... 47
      5. No right to confront witnesses ................................................................................................... 47
  E. Burden of Proof for Sentencing Factors ........................................................................................ 47
      3. Sentence Within Statutory Range (Williams) ............................................................................ 47
      4. Fact of prior conviction (Almendarez-Torres) ........................................................................... 47
      5. Fact mandating higher minimum (McMillan) ............................................................................ 47
      6. Fact raising statutory max (Apprendi) ....................................................................................... 47
      7. Fact raising max sentence beyond would be authorized by conviction alone (Blakely) ............ 48
      8. A fact permitting consecutive sentences for multiple offenses (ICE)........................................ 48
XII. ..................................................................................................................................... Double Jeopardy
                                                                                   48
  B. Attachment .................................................................................................................................... 48
  C. Reprosecution Following Mistrial ................................................................................................. 48
      1. Where D did not consent or request mistrial .............................................................................. 48
      2. If D consents or requests mistrial ............................................................................................... 49
  D. Reprosecution Following Acquittal .............................................................................................. 49
  E. Reprosecution Following Conviction Overturned on Appeal ....................................................... 49
      1. Reversed for insufficient evidence ............................................................................................. 49
      2. Reversed for procedural error .................................................................................................... 49
      4. Where D is convicted of lesser offense, implies acquittal of greater (Green) ........................... 50
  F. Reprosecution Following Dismissal .............................................................................................. 49
      1. Pre-Trial dismissal .................................................................................................................... 50
      2. Dismissal based on Procedure.................................................................................................... 50
      3. Dismissal based on failure to rebut insanity or entrapment defense .......................................... 50
      4. A dismissal for insufficiency of the evidence ............................................................................ 50
      5. Dismissal following a jury’s guilty verdict ................................................................................ 50
  G. Following Sentencing.................................................................................................................... 50
XIII. .................................................................................................................... Review of Error by Appeal
                                                                                   51
  A. Source of Defendant’s Right to Appeal ........................................................................................ 51
  B. Defendant’s Appeals ..................................................................................................................... 51
      1. Can D appeal at this time? ......................................................................................................... 51
      2. Did D expressly waive his right to seek relief based on this error? ........................................... 52
      3. Did D forfeit right by pleading guilty? Except .......................................................................... 52
      4. Did D forfeit right by failure to raise before the trial court in a timely appropriate manner? ... 52
      5. Was there error and can it be established under the relevant standard of review? .................... 52
      6. Assuming error not waived or forfeited, relief? ......................................................................... 53
  C. Government’s Right to Appeal ...................................................................................................... 54




                                                                                                                                                            5
XIV........................................................................................................................................ Habeas Corpus
                                                                                 54
  A. Basic Contours .............................................................................................................................. 54
  B. Judicial Restrictions ...................................................................................................................... 54
    1. No relief on 4th Amendment claims ........................................................................................... 54
    2. No enforcement of “new” rules declared after D’s appeal is final ............................................ 54
    3. State procedural default bars federal habeas claims ................................................................. 54
  C. Statutory Limitations ..................................................................................................................... 55
    1. 1 year statute of limitations, tolled by properly filed state post-convictions proceeding .......... 55
    2. Claims must be exhausted .......................................................................................................... 55
    3. Limited evidentiary hearings when facts were not developed in state court ............................. 55
    4. Bars successive petitions except in limited circumstances ........................................................ 55
    5. Deferential standard of review ................................................................................................... 55
    6. Fast-track deadlines for capital cases ......................................................................................... 55
  D. Evaluating Merits of State Court Decision ................................................................................... 55
    1. Contrary to ................................................................................................................................. 55
    2. OR Unreasonable Application of ............................................................................................... 55




                                                                                                                                                       6
I. Regulating Charging Discretion of Prosecutors
      A. Discretion Generally
             1. Stages involving discretion
                     a. Investigation: whether and how; if GJ used, what evidence should be
                        presented?
                     b. Immunity: Should some witnesses be granted immunity?
                     c. Charging Decision
                     d. Motion to Vacate after trial
                     e. Discovery of New Evidence
             2. Factors to Consider (ABA 3-3.9)
                     a. Prosecutor’s reasonable doubt that the accused is in fact guilty
                     b. Extent of the harm caused by the offense (need for retribution deterrence)
                     c. Disproportion of the authorized punishment in relation to the particular offense
                        or the offender
                     d. Possible improper motives of a complainant
                     e. Reluctance of the victim to testify
                     f. Cooperation of the accused in the apprehension or conviction of others
                     g. Availability and likelihood of prosecution by another jurisdiction
                     h. Should NOT give weight to the personal or political advantages or
                        disadvantages which might be involved or to a desire to enhance his or her
                        record of convictions
                     i. In cases which involve serious threat to the community, should not be deterred
                        where juries have tended to acquit
                     j. Should not bring a charge greater in number or degree than can reasonably be
                        supported with evidence at trial or are necessary to reflect the gravity of the
                        offense
             3. Reasons to Decline
                     a. Evidentiary problems: search and seizure; uncooperative victim
                     b. Limited resources
                     c. Community: Legislative over-criminalization; politically unpopular/lack of
                        community support; jury may nullify; would lead to decreased respect for the
                        law
                     d. Need for individualized justice; labeling a person a criminal, creating criminal
                        record may do more harm than good
                     e. Other options (civil remedies, diversion programs) available

              4. Selecting the Charge
                     a. Elements
                     b. Evidence
                     c. Victim wishes?
       B. Limits on Decision Not to Prosecute
              1. Judicial Oversight
                     a. Attica: Courts are loath to review prosecutors decisions even if the statutory
                         language makes prosecution mandatory (US Attorneys are authorized and
                         required to institute prosecutions against…”) because
                             (i) Courts do not want to become “superprosecutors”



                                                                                                         7
                      (ii) Do not want to compromise secrecy of GJ or accused’s reputation by
                            making evidence file available to adversary
                      (iii) Avoid abuse by persons seeking to have other persons prosecuted
                      (iv) Difficult to establish a standard: when can a prosecutor halt an
                            investigation? What evidentiary standard would be used? How much
                            discretion?
              b. Armstrong: Prosecutors have relative competence to assess strength of the
                 case, deterrence value, overall enforcement plan, and enforcement priorities
       2. Other possible checks on discretion
              a. Fed.R.Crim.P. 48(a) requires leave of court to dismiss existing charges; but
                 this does not give court authority before charge has been brought (Connors)
              b. Criminal Statutes – courts have not interpreted them as mandatory (Attica)
              c. Grand Jury: but in most states GJ can’t act on its own because the prosecutor
                 has to sign the indictment (Cox)
              d. Attorney General: In states, AG may bring charge where DA declines to do
                 (Johnson v. Pataki)
              e. Private prosecutors: rarely available
              f. Electoral system – public shame and civilian oversight could impact next
                 election
              g. Internal control in the office may allow supervisor to prosecute where
                 individual DA does not
C. Limits on Decision to Prosecute
       1. Arbitrary Prosecution: No rational basis for prosecution
              a. Kail: No rational basis for enforcing bell on a bicycle law only against
                 prostitutes
              b. But selective prosecution is generally ok if the ordinance has valid law
                 enforcement purpose
       2. Discrimination or Selective Enforcement: Equal Protection Test (Armstrong)
              a. D is a member of a protected class (Armstrong/McKlesky) or exercised a
                 fundamental right (Wayte, Walker, Aguilar)
              b. D must show by preponderance
              c. Discriminatory effect: similarly situated persons were not prosecuted AND
              d. Discriminatory purpose: D would not have been prosecuted but for
                 race/gender/exercise of right
                      (i) Statistics not enough: 24/24 cases with black Ds not enough
                            (Armstrong); Statistical trend showing that P seeks death penalty in
                            70% of cases involving black D’s and white Vs (McKlesky)
                      (ii) Selective enforcement ok: against vocal lawbreakers (Wayte; Ojala)
                            or only grocery stores (Taylor) is an appropriate use of prosecutorial
                            discretion; unless they can show purposeful discrimination
                      (iii) Improper motives short of discrimination ok: Annala – charging child
                            molester 5 years after the crime ok; Walker – enforcing multiple
                            dwelling law only against D who earlier complained about building
                            code violations ok so long as she actually violated a valid law
              e. To gain discovery, D must make credible showing of discriminatory effect and
                 purpose



                                                                                                8
                                      (i) Higher bar because of the burden imposed on P in collecting data
                      3. Vindictive Prosecution and Due Process
                              a. Where D exercises constitutional right to jury trial pre-trial (Goodwin) no
                                 presumption of prosecutorial vindictiveness; D must show actual
                                 vindictiveness
                                      (i) Prosecutor may have discovered new evidence or reconsidered; initial
1. Pretrial/no bargaining:                  decision should not freeze future conduct
D must show actual                    (ii) Proof of actual vindictiveness would establish a violation
vindictiveness
2. Bargaining stage: state            (iii) Remedy is to get rid of vindictiveness and drop higher charge
may not directly retaliate    b. Where D exercise right to go to trial (declining guilty plea), P may increase
but can forego lesser            charges (Bordenkircher v. Hayes)
charge for higher one.                (i) Guilty pleas essential to justice system
3. Post-trial, presumption            (ii) State may deter D from exercising rights but may not retaliate;
of vindictiveness
4. Remedy is dismissal of                   vindictiveness permissible if it’s a choice
higher charge                         (iii) Dissent argued that P should have to bring higher charge first and
                                            then lower if desired
                              c. Where D exercises right to appeal post-trial, presumption of vindictiveness
                                      (i) Prosecutor may not upwardly revise the D’s charge to make the same
                                            conduct punishable by a higher penalty (Blackledge v. Perry)
                                      (ii) Like Pearce: Judge may not impose harsher sentence to discourage
                                            appeals
                                      (iii) However, does not preclude if state shows that it was impossible to
                                            proceed on the more serious charge at the outset
   II. Bail and Pre-Trial Detention
             A. Rationale
                      1. In favor of bail
                              a. Make sure they show up
                              b. Prevent danger to community
                      2. Against bail
                              a. Presumption of innocence
                              b. Imprisoned for longer than sentence
                              c. Need to prepare defense: accuracy, equality
                              d. Imprisonment costs money for the state
                              e. Person’s family and job
                              f. More likely to falsely admit to crime if faced with imprisonment
                      3. Characteristics
                              a. 28% released on PR; 66% bail set; 6% held without bail
                              b. Timing: of all those released, 48% released within 1 day; 73% within 1 week;
                                 90% within 1 month
             B. Procedures under Bail Reform Act
                      1. Personal Recognizance
                              a. Subject to condition that no new crimes committed and that person cooperate
                                 in collection of DNA sample if authorized
                      2. Supervised release with conditions (BRA 3142(c)(B))
                              a. No new crimes




                                                                                                              9
         b. Least restrictive further condition or combination of conditions that may
            include:
                 (i) Custody of designated person who will assume supervision and report
                       any violation and assure that person will not pose a danger
                 (ii) Maintain employment
                 (iii) Maintain or commence educational program
                 (iv) Restrictions on personal associations, abode, or travel
                 (v) Avoid contact with alleged victim and potential witnesses
                 (vi) Reporting
                 (vii) Curfew
                 (viii) Refrain from possessing firearm or weapons
                 (ix) Refrain from excessive alcohol or drug use
                 (x) Property forfeiture agreement
                 (xi) Custody following employment, school, etc
3.   Unsecured bond: conditions and promise to pay if you fail to appear
4.   Secured bond set by schedule
         a. Full cash
         b. Property
         c. Surety
         d. 10% deposit to the court
         e. Bonding agent: bounty hunters are non-state actors and not subject to
            constitutional limits
5.   Judge may not impose a financial condition that results in detention (BRA 3142(c)(2))
         a. Compare to states
6.   Detention if, after hearing, no combination of conditions is sufficient to assure
     appearance and safety of community (BRA (3142(e))
         a. Rebuttable presumption of detention if:
                 (i) if crime of violence for which a max term of 10 years or more or
                       crime for which life or death is penalty or if accused felon has been
                       convicted of two prior >10 year offenses, or felony with minor victim
                 (ii) Or if Government/court shows that case involves serious flight risk or
                       risk that D will obstruct justice, threaten, injury, or intimidate a
                       prospective witness or juror
         b. Hearing should afford person opportunity to testify, present witnesses, cross-
            examine witnesses, present info by proffer
                 (i) Rules of evidence do not apply
         c. Consider nature and circumstances of the offense, weight of the evidence,
            history and characteristics of the person
                 (i) Character, mental and physical condition, ties, employment, financial,
                       length of residence in community, community ties, past conduct,
                       history relating to drug or alcohol abuse, criminal history and record
                       concerning past appearances
                          (a) D has burden of producing evidence of ties and past record but
                              P has burden of proof concerning likelihood of spearing (Van
                              Atta v. Scott)
                 (ii) Whether person was on probation or parole at time of arrest



                                                                                          10
                      d. Interlocutory appeal available
       C. Constitutional Right to Bail and Limits on Preventative Detention
             1. 8th Amendment
                      a. Incorporated against the states (Schilb v. Kuebel)
                      b. Bail set higher than amount reasonably calculated to assure appearance is
                         “excessive” under the 8th Amendment (Stack v. Boyle)
                      c. Fixing of bail must be based on individualized assessment; need for bail cannot
                         be inferred from nature of charge/indictment alone (Stack v. Boyle)
                              (i) If unusually high bail is required, D’s rights should be preserved by
                                   holding evidentiary hearing
                      d. There is no requirement that a bail be set; if it is set, it must not be excessive
                         relative to stated goals and must be determined according to BRA procedures
                         (Salerno)
                              (i) Detention is regulatory not punitive
             2. Substantive Due Process
                      a. Detention without bail does not violate because it is regulatory and no punitive
                         (Salerno)
                              (i) Legislative intent to advance regulatory goal
                              (ii) Fit between statute/action and regulatory goal
             3. Procedural Due Process
                      a. Nothing inherently uncalculable about prediction of future violence (Salerno)

III. Screening the Charge
        A. Preliminary Hearing v. Grand Jury Screening
                1. Prosecution by Preliminary Hearing is an information; prosecution by GJ is an
                   indictment.
                2. In Federal court, the 5th Amendment requires charging decision to be screened by a GJ
                        a. Fed.R.Crim.P. 5.1 provides preliminary hearing in all federal felony cases, to
                           be held within a “reasonable time following initial appearance, but not later
                           than:
                                (i) The 10th day or
                                (ii) The 20th day following initial appearance if the arrested person is
                                     released from custody
                        b. Federal system allows prelim unless, prior to the date fixed for the prelim, an
                           indictment is returned
                                (i) Has essentially eliminated all preliminary hearings because US
                                     Attorney can bypass the hearing by taking case to grand jury that sits
                                     daily; magistrate could not undermine GJ’s finding of probable cause
                3. GJ is not a “fundamental right” and is not incorporated against the states through the
                   14th Amendment. States are not required to have any screening procedures: due
                   process does not require state to adopt the institution and procedure of a grand jury.
                   (Hurtado)
                        a. Substantive due process does not protect an individual even against burdens of
                           baseless prosecution without probable cause (Albright)
                        b. States are only required to screen for probable cause if suspect is held in
                           custody following arrest (Gerstein)



                                                                                                        11
                        c. However most states have some independent screening process: either GJ,
                            prelim, or direct filing
                                 (i) 18 states require indictment for all felonies; prelim hearing within a
                                       specified period after arrest (but can be bypassed by indictment)
                                 (ii) 32 states permit felony prosecution to be brought by information
                                          (a) Prosecutors overwhelmingly choose to proceed by information
                                              (see section below) unless prelim would have protracted
                                              evidence, would lead to key defense discovery, or would force
                                              victim to testify too many times
                                          (b) A handful of information states allow direct filing: proceed
                                              without prelim
               4.   Pro-prosecution reasons for prelim
                        a. Allows better prep of witnesses (pro-P); put witness to the test of testifying
                        b. Promoting V’s interest by presenting issue in a public forum
                        c. Gaining D perspective as to events
                        d. Witness ID of the subject
                        e. Promoting public confidence in a sensitive prosecutorial decision
                        f. May help P get to plea faster (pro P)
                        g. Preserves testimony and D’s cross-examination protections for witnesses later
                            unavailable for trial (pro-P)
               5.   Pro-defense reasons
                        a. Gives defense a discovery opportunity (pro D)
                        b. Allows argument by counsel on bail or need for psych testing (pro D)
                        c. May be the only screening before plea bargaining (pro D)
                        d. It commits witness testimony for later impeachment (pro-D)
               6.   Right to counsel in prelim, not in GJ (Coleman)
                        a. Prelim is critical stage
                                 (i) Cross exam of critical witnesses
                                 (ii) Cement testimony for trial
                                 (iii) Discover states’s case
                                 (iv) Early opp for psych exam or bail argument
               7.   Minimum constitutional requirements:

Preliminary Hearing or other Screening               Grand Jury
1. States may use either Prelim or GJ to screen      1. Federal courts are required by 5th Amendment
                                                     to screen charges through grand jury; states are
                                                     not required
2. Where prosecutor charges without GJ:              2. Where GJ charges
- If D is in custody before trial, 4th Amendment     - If person is not in custody, no screening under
requires magistrate to do ex parte screening         4th Amendment
(Gerstein)                                           - Even if in custody, GJ counts as screening, no
- If D is not in custody, no right to prelim or      need for additional screening
magistrate screening

3. Where prelim given, right to counsel              3. No right to counsel in the GJ
(Coleman)


                                                                                                         12
B. Preliminary Hearings
        1. Purpose:
               a. Determine whether there is sufficient evidence to bind the case over
                       (i) Only between 2% and 335 of cases dismissed on prelim: but this
                             number could depend on level of prosecutorial screening, utilization
                             of GJ, caseload at trial level, use of plea bargains, whether D regularly
                             insists on prelims, and whether P presents all key witnesses or just
                             enough for standard
               b. D typically seeks other advantages of prelim unless the state’s case is actually
                  weak (but may be advantageous to force a bench trial where state’s case is
                  weak)
        2. Rules
               a. Bindover standard: reasonable belief that offense committed and that D
                  committed (Clark)
                       (i) Some jurisdictions require prima facie standard: whether evidence, in
                             light most favorable to the prosecution, could lead jury to find guilty
                             BRD. But this is rare because of the timing of the hearing (10 days
                             after arrest)
               b. Evidence
                       (i) Recognize testimonial privileges
                       (ii) Brady duty to turn over exculpatory evidence also applies (Mitchell)
                       (iii) States vary on applicable rules of evidence
                       (iv) Hearsay typically permitted; some states only allow limited hearsay
                       (v) Many states do not recognize exclusionary rule for unconstitutionally
                             obtained evidence
               c. Magistrate typically not allowed to weigh credibility (see Hunter, Colorado);
                  but some states allow
               d. Many jurisdictions recognize defense right of subpoena; some require
                  permission from magistrate (D will typically not choose to present witnesses
                  though)
               e. D has right to counsel because it is a “critical stage” (Coleman v. AL)
               f. If charge is dismissed, prosecutor may still seek GJ indictment or refile charges
                  and seek another hearing on the same evidence
        3. Challenges
               a. Types of challenges
                       (i) Denial of right to prelim (by accepting a faulty waiver)
                       (ii) Magistrate erred in finding probable cause
                       (iii) Erred in procedural ruling at the prelim
               b. Approaches to Assessing Error
                       (i) Coleman approach (federal and some states): vacate conviction and
                             remand for lower court to determine whether denial/error was
                             harmless under Chapman; is D able to point to specific aspect of the
                             trial where D was adversely impacted by having lacked counsel at
                             prelim
                                 (a) State courts tend to assume error was harmless and require D to
                                     prove harm



                                                                                                   13
                      (ii) Per se harmless approach: most state courts
                               (a) Like the GJ standard in Mechanik
                      (iii) Jurisdictional defect approach: cannot be cured by subsequent trial
                            and conviction = automatic reversal
                               (a) Absence of proper bindover comparable to not filing a charge
C. Grand Jury Basics
       1. Procedure
              a. Indict on probable cause
              b. No judge or magistrate presiding
              c. GJ can’t go forward without the US Attorney
              d. GJ transcripts are not public records
              e. GJ can ask a question of a witness as well as the prosecutor
              f. D/target does not have a right to counsel at GJ or to review charge
                      (i) Even though preliminary hearing is a “critical stage” GJ review is not
              g. Double jeopardy does not attach; if GJ refuses to indict, prosecutor may try
                 again
              h. Jurors, interpreters, court reporters, transcriber, or attorneys are sworn to
                 secrecy; witnesses do not have secrecy obligation (FRCP 6(e)(2))
              i. D can waive right to GJ and proceed by information (particularly if D is in jail
                 and would be prejudiced by delay)
       2. Secrecy Rationale (US v. Procter & Gamble)
              a. Avoid altering target who isn’t in custody; prevent escape or destruction
                 of evidence
              b. Prevent influencing or intimidation of grand jurors
              c. Encourage free disclosure by witnesses
              d. Protect the innocent (whiff of investigation can be damaging)
       3. Suggested reforms
              a. Requiring court to fully inform jurors of independent authority (including
                 nullification)
              b. Giving GJ its own counsel or ask court for legal advice
              c. Giving target the right to testify
              d. Requiring prosecutor to present available exculpatory evidence Forbidding use
                 of unconstitutional evidence
              e. Prohibiting use of hearsay
              f. Requiring prima facie cases standard of proof
              g. Requiring affirmative vote of a supermajority of grand jurors
              h. Prohibiting resubmissions following decision not to indict
              i. Challenge procedure that requires court to review transcript
       4. Assessments of reforms
              a. Basic problem is in very structure of grand jury and reform not enough; lay
                 persons applying unfamiliar standard to one-sided presentation of the facts
              b. Supporters of GJ reject reforms because they argue GJ is highly effective
                 (sounding board); brings layperson’s sense of reality; strength is in
                 controversial cases
              c. Courts typically downplay significance of the indictment process; or regard it
                 as effective



                                                                                                  14
D. Challenging the Grand Jury
       1. Composition
              a. Standing: Third-party standing where D has stake in the outcome, jurors have
                 little opportunity to raise the challenge, and D shares interest in the outcome
                       (i) Even white D has standing to challenge exclusion of black petit and
                             grand jurors (Powers + Campbell)
              b. Discrimination in selection of GJ
                       (i) Equal Protection: D must show deliberate discrimination in the
                             selection of the array (venire) or make a prima facie showing which
                             shifts burden to state to show discriminatory impact was not
                             purposeful (Rose; Vasquez; see “relief” below)
                       (ii) Batson challenges for composition of the grand jury allowed, but far
                             less common in GJ
              c. Discrimination in selection of foreperson
                       (i) Hobby: May only challenge selection of foreperson if Court selects
                             someone from outside the randomly-selected pool (which changes the
                             composition of the GJ)
                                (a) Only a few states appoint outside foreperson
                                (b) Only a few states give foreperson significant responsibility
                       (ii) But after Campbell, not clear if this is good law because D could have
                             brought EP challenge by showing purposeful discrimination against
                             someone in GJ
              d. Personal bias of grand juror does not require reversal (Rule 6(b) doesn’t give
                 power)
                       (i) But several state provide statutory bias objections: relatives of the
                             victim, state of mind prevent impartiality,
                       (ii) But D must make preliminary showing of likely prejudice to invade
                             secrecy of GJ transcript
              e. Remedy: Discrimination on the basis of race during selection of GJ results in
                 automatic reversal of the conviction, even if D was later convicted by fairly-
                 selected jury (Rose)
                       (i) Vasquez: Even on habeas, relief can be granted because GJ has power
                             to charge greater/lesser offense, numerous or singular counts, capital
                             or noncapital offense
                       (ii) Nothing more damaging than discrimination
                       (iii) Too hard to show if discrimination made a difference
       2. Evidentiary Limits
              a. D may not challenge indictment based on hearsay evidence, insufficiency of
                 the evidence, or incompetency of the evidence (Costello)
                       (i) Allowing these challenges would create impermissible delay and
                             create mini-trials
                       (ii) History of allowing broad range of evidence into GJ
                       (iii) Allowing challenge would harm benefits of secrecy
                                (a) But secrecy concerns aren’t as potent because d can choose to
                                    abrogate secrecy that protects his reputation, witness has
                                    already been honest, jurors can’t be influenced



                                                                                                15
                                b. May not allege prosecutorial misconduct for failure to present exculpatory
                                   evidence: Courts have no supervisory power over the GJ and cannot dismiss
                                   indictment for failure to present exculpatory evidence to the GJ (Williams)
                                        (i) Rationale
                                                  (a) GJ is functionally independent and not bound by constitutional
                                                      rights like double jeopardy, right to counsel or procedural rights
                                                      (exclusionary rule, hearsay rules)
                                                  (b) GJ is accusatory not adjudicatory
                                                  (c) Could lead to D presenting a defense
                                        (ii) Some evidence claims may still exist after Williams
                                                  (a) If D demonstrates that misconduct is long-standing or common
                                                      problem in the district and P’s actions caused actual prejudice
                                                      for the D (Boettcher)
                                c. May not challenge based on unconstitutionally obtained evidence (Calandra)
                                        (i) But USAO manual directs attorneys not to present evidence he knows
                                              was obtained as a direct result of the constitutional violation
                                d. Remedies
                                        (i) Hearsay: No relief (Costello)
                                        (ii) No evidence: no relief (Costello)
1. Basis for
challenge                               (iii) Failure to present exculpatory: No relief unless there is a long-
a. Discrimination in                          standing patter or common problem in the district (Williams)
composition:                            (iv) Illegally obtained evidence: No relief (Calandra)
automatic reversal       3. Prosecutorial Misconduct
(Rose)
                                a. Constitutional Violation: Always try to argue this!
b. Constitutional
(structural,                            (i) Where structural protections have been so compromised as to render
discrimination,                               proceedings fundamentally unfair, allow presumption of prejudice to
pervasive problem):                           the D (Isgro)
presume prejudice                       (ii) But no constitutional error where charging judge told grand jurors (1)
(Isgro)
                                              not to judge the wisdom of the law and (2) that P is presumably acting
c. Rules/Statute:
Must raise before                             in good faith (Navarro-Vargas)
trial and show                                    (a) Does not undermine juror’s independence
significant influence           b. Statutory or Rules violation (FRCrP 6): Dismissal only if error had substantial
on outcome (B of                   influence on outcome of the proceeding and it is challenged prior to conviction
Nova Scotia)
                                        (i) Having two witnesses in at the same time (Mechanik)
- If after trial, must
have affected                           (ii) Evidentiary violations rarely rise to the level of misconduct unless it
outcome at trial                              is a pervasive problem (Williams)
(Mechanik)                      c. Ethics violation
2. Secrecy                              (i) US Attorney’s Manual prohibits making argument about D’s silence
Concerns
                         4. Remedies for Prosecutorial Violation of Statute or Rule
                                a. To gain court ordered discovery to prove misconduct in the GJ: D must show
                                   that a ground may exist to dismiss the indictment because of a matter that
                                   occurred before the GJ (Rule 6(e)3(E)(ii))
                                        (i) Must produce affidavit of friendly witness or portion of transcript
                                              otherwise released
                                b. To Prove Error if Prior to Conviction (Bank of Nova Scotia), D must show
                                   error was not harmless/prejudicial impact: dismissal appropriate only if it is



                                                                                                                     16
                               established that the violation substantially influenced the GJ’s decision to
                               indict or if there is grave doubt that the decision to indict was free from
                               substantial influence of such violations
                                    (i) Judge will probably just take motion under advisement until after
                                         conviction
                            c. Post-conviction (Mechanik): Consider error in light of conviction: any error in
                               GJ is harmless per se unless it affected the outcome of the trial
                                    (i) Even if indictment was faulty, a jury’s determination of guilt beyond
                                         a reasonable doubt cures any defect
                     5. Motion to Dismiss an Indictment is not immediately appealable via interlocutory
                        appeal (Midland Asphalt)
      IV. Joinder
               A. Joining Offenses: Which May be Joined
                          1. Joining: Rule 8(a): the indictment or information may charge a D in separate counts if
                             offenses are
                                  a. Of the same or similar character
                                          (i) Allowing offenses that took place at a different time and place is
                                                controversial
                                  b. Are based on the same act or transaction
                                          (i) Look for time between offenses – usually limited to days or even
                                                hours
                                  c. Are connected with or constitute parts of the common scheme or plan
                                          (i) Not a question of overlapping evidence; look for factors connecting
                                                two offenses: embezzle to cover up fraud, steal a car to use after a
                                                robbery
                                  d. Reasons to join
                                          (i) Economy
                                          (ii) Finality for the D
                                          (iii) Constitution may require
                                          (iv) Easier on the witnesses
                                          (v) Concurrent sentences
                          2. Severance: Rule 14: If joinder of offense appears to prejudice a D or the government,
                             the court may order severance of counts
                                  a. Spillover prejudice (Drew): If charged with multiple crimes, jury may infer
1. Can charges be joined
                                     criminal disposition; worse crime makes D appear worse than if only minor
under Rule 8?
2. Should they be                    crime charged
severed under Rule 14?                    (i) But no severance required if:
a. Spillover prejudice                             (a) Rules of evidence would allow the jury in the trial of charge A
i. But would evidence                                  to hear evidence of charge B anyway, even if two were tried
come in anyway?
                                                       separately
ii. Are crimes simple and
distinct?                                                    Motive, intent, absence of mistake, common scheme or
b. Inconsistent defenses:                                       plan where proof of one tends to establish the other,
evidence on one charge                                          identity of the person charged with the commission of
is weak and he wants to                                         the crime
testify on the other; is it
distinct from other
                                                   (b) Even if evidence of charge B would not be admissible, if the
claims for severance?                                  two offenses are “simple and distinct”



                                                                                                                    17
                                           Likelihood of jury confusion; does P refer to crimes at
                                            the same time or use them interchangeably
              b. Inconsistent defenses (Cross): Forces D to choose between inconsistent
                 defenses
                      (i) D must proffer specific testimony that he wants to give in one case
                            and specific reason why he doesn’t ant to testify in the other;
                            otherwise any D charged with multiple counts could move to sever
                      (ii) Court should balance: evidence against D for each offense,
                            availability of defense evidence other than proffered testimony,
                            plausibility of testimony, effects of demeanor impeachment and cross
                      (iii) Notoriously difficult to apply before trial; appellate review standard is
                            abuse of discretion
B. Joining Defendants
       1. Rationale
              a. Pro: Economy
              b. Con: Prejudice, constitution may require severance; joinder may compromise
                 confrontation rights
       2. Statutory Limits
              a. Rule 8(b): Two or more defendants may be charged together if:
                      (i) Same act or transaction
                      (ii) Same series of acts or transactions
                               (a) But even if the conspiracy charge is dropped, can still be
                                   charged together (Schaffer)
                      (iii) Note: no similar character provision: even if closely-related in time or
                            have overlapping evidence, different offenses can’t be joined unless
                            they are part of the same act or transaction
              b. Rule 14: if joinder appears to prejudice D, should be severed (typically argued
                 by least culpable D)
                      (i) Complexity of the evidence is such that the trier of fact probably will
                            be unable to distinguish the evidence or apply the law intelligently
                               (a) Where proof is carefully compartmentalized and there is no
                                   prejudice, joinder not an error (Shaffer)
                      (ii) Because several defendants have antagonistic defenses
                               (a) Not entitled to severance merely because they have a better
                                   chance of acquittal separately or have conflicting defenses; only
                                   if serious risk that join trial would compromise a specific trial
                                   right or prevent the jury from making a reliable judgment
                                   (Zafiro)
                                         Evidence that jury should not consider against one that
                                            would not be admissible if D tried alone
                                         But just because one D is capital and the other is not,
                                            not entitled to severance
                      (iii) Otherwise impossible to call a co-D as a witness
                               (a) Must show that he would call the co-D at a severed trial, that
                                   the co-D would testify, and that the testimony would be
                                   favorable to the D (Vigil)


                                                                                                  18
                                 c. However, failure to sever (even clear error) can be harmless (Lane)
                          3. Constitutional Limits
                                 a. Confrontation: Cannot introduce co-Ds confession at joint trial when co-D
                                     doesn’t testify (Bruton); limiting instruction not sufficient to reduce prejudice
                                          (i) Removing name from co-D’s confession is not sufficient to remove
                                                prejudice (Gray)
                                          (ii) Must sever trial, provide separate juries, or eliminate any reference to
                                                D from confession (Richardson: confession didn’t suggest D’s
                                                presence)
                 C. Joining Offenses: What Must be Joined
                          1. Double Jeopardy: Same offenses must be joined or DJ will bar prosecution for the 2nd
                             offense
                                 a. Does each offense have on separate element not contained in the other?
1. Same series/transaction,          (Dixon-Blockburger) If one offense is a lesser-included, barred by double
character, or common                 jeopardy from bringing separate prosecutions
scheme/plan? Rule 8                       (i) Dixon: Contempt + drug crime = same offense; contempt (for drug
2. May the court sever:                         crime) and assault with intent to kill = not the same offense, intent to
spillover prejudice or
inconsistent defenses?
                                                kill is an extra element
3. Must offenses be joined?      b. Limits
Same elements? If different V,            (i) If D seeks to sever because he wants to avoid prejudice, he is deemed
fact necessarily determined?                    to have waived double jeopardy
4. Std on appeal for misjoinder           (ii) Does not bind separate sovereigns: two states or federal/state
is harmless error (Lane)
                                          (iii) Same sovereign may seek civil penalties unless “civil” action is
                                                essentially criminal (Hudson); could also seek criminal after civil
                          2. Collateral Estoppel/Claim Preclusion
                                 a. Distinguish from DJ: different victim means it’s not the same offense; look to
                                     claim preclusion
                                 b. Acquittal for one offense will bar a later prosecution for a different offense if a
                                     fact necessary for conviction of the second offense was necessarily
                                     determined earlier in the D’s favor (Ashe)
                                          (i) Was the fact fully-litigated?
                                          (ii) Look at charges to the jury, arguments to the jury, questions by jurors
                                          (iii) If D conceded all other issues, acquittal was probably based on that
                                                issue
                                          (iv) If civil prosecution fails, government can seek civil penalties because
                                                the burden of proof is different; but after losing civil case, cannot seek
                                                criminal prosecution if (a) actually litigated and (b) fact was reason
                                                for finding at earlier trial
        V. Regulating Delay
                 A. Interests
                          1. Advanced by speedy trial
                                 a. D’s interests
                                          (i) D may be incarcerated – no income, freedom, impaired ability to
                                                prepare defense
                                          (ii) Can’t clear name
                                          (iii) Lack of resolution



                                                                                                                       19
                      (iv) Defense evidence may be lost with passage of time
               b. Society
                      (i) Risk of released D harming society
                      (ii) Don’t want to lose proof, memories
                      (iii) Finality
                      (iv) Costs to taxpayers, families, employers from incarceration
                      (v) Avoid arbitrary plea bargains
                      (vi) Rehabilitation effect lessened
                      (vii) Victims may prefer swift justice
                      (viii) Reduces risk of vigilante justice
      2. Advanced by delay
               a. D’s Interests
                      (i) More time to build case
                      (ii) Negotiate plea instruments
                      (iii) State has burden of proof and evidence lost may be crucial to the case
                      (iv) Prosecutor may dismiss the case based on lack of public interest
                      (v) Put off eventuality of jail
                      (vi) More likely to find impartial jury the longer separated from news of
                            the vent
               b. Society/Prosecution
                      (i) Time to develop proof
                      (ii) Increased leverage for settlement
                      (iii) Other more important cases
B. Constitutional Limits
      1. Prior to charge (Lovasco)
               a. Dismissal requires showing of
                      (i) Prejudice
                      (ii) Prosecution’s reason for delay
                                (a) Hoping for impairment of defense is not an acceptable reason
                                (b) Some lower courts require showing of bad faith
               b. Forcing P to bring charge before it is ready risks
                      (i) Impairing ability to fully investigate
                      (ii) Impairing ability to consider wisdom of charges
                      (iii) Resolving doubtful cases in favor of prosecution
      2. Delay between charge and trial:
               a. Test: Barker balancing
                      (i) Length of delay: minimum time necessary to trigger is at least 6-10
                            months; time beyond that weighed in the balance
                      (ii) Reason for delay; good reasons include witnesses overcrowded
                            dockets
                      (iii) Whether D asserted the right
                      (iv) Prejudice to D: impaired defense, incarceration, and
                            anxiety/reputation
                      (v) Delay caused by D or D counsel weighs against the D (even if counsel
                            is private or publicly assigned); public defender’s failure to move the
                            case forward is not attributable to the state (Brillon)



                                                                                                20
               b. Applying the test
                       (i) Barker: D never asserted and didn’t show prejudice; but had he shown
                             these, the P’s reasons for waiting were unacceptable
                       (ii) Doggett: 8 year delay with no good reason for waiting (government’s
                             negligence in not looking for D); D can’t be penalized for failing to
                             assert because he had no knowledge of the indictment
                       (iii) Wilson: 22 years + active evasion + D failed to assert; prejudice
                             waived where D actively flees?
               c. Dismissal with prejudice is the only possible remedy; remanding would only
                  add to delay (Strunk)
C. Statutory Regulation: Speedy Trial Act
       1. Starting the Clock
               a. From arrest, 30 days until indictment; unless no GJ has been in session during
                  such 30 period (3161(b))
               b. From public filing of indictment or information or date of first appearance,
                  which occurs later, trial must occur within 70 days (3161(c)(1))
                       (i) Unless D consents in writing, trial shall not commence less than 30
                             days from first appearance (3161(c)(2))
       2. Restarting the clock
               a. If indictment or information is dismissed on D’s motion or charge dismissed
                  and new complaint is filed charging D with the same offense or offense based
                  on the same conduct or arising from the same criminal episode, starts the clock
                  over and trial must begin with 70 days (3161(d)(1))
               b. If indictment or information is dismissed by trial court and reinstated
                  following appeal, trial must occur 70 days from day decision becomes final or
                  180 days if witnesses are unavailable or other factors from passage of time
                  (3161(e))
               c. If retried after mistrial, 70 days from date of action occasioning the retrial
                  (3161(e))
               d. Deemed indicted from day earlier plea is withdrawn (3161(i))
       3. Isolate periods of delay
               a. Periods attributable to D (3161(h)(1))
                       (i) Proceeding including examinations to determine mental competency
                             of physical capacity of D
                       (ii) Trial with respect to other charges against D
                       (iii) Interlocutory appeal
                       (iv) Pretrial motion, filing through conclusion or other prompt disposition
                             of the motion
                                (a) Lower courts interpret as 45 days
                       (v) Proceeding relating to transfer or removal to another district under
                             FRCP
                       (vi) Transportation of D from district to exam or hospitalization, except
                             time in excess of 10 days from date of order of removal or transport
                             and D’s arrival (presumed unreasonable)
                       (vii) Consideration of the court of proposed plea agreement




                                                                                               21
               (viii) Period (less than 30 days) any proceeding by D is actually under
                     advisement by the court
               (ix) Deferred by government by agreement with D
               (x) Absence or unavailability of the D or an essential witness
                        (a) If whereabouts unknown and he is attempting to avoid
                            apprehension or prosecution (absent); or whereabouts known
                            but cannot be obtained by due diligence or he resists appearing
                            for trial (unavailable)
               (xi) Period where D is mentally or physically unable to stand trial
       b. Information or indictment is dismissed on motion for the P and thereafter a
          charge is filed against the D for the same offense, an offense required to be
          joined, delay would run for new charge as though there had there been no
          previous charge
               (i) Compare to motion by D: clock restarts; here, clock stops
       c. Where D is joined for trial with co-D for whom time has not run and no motion
          for severance has been granted
               (i) Co-D’s excludables also excludable
       d. Continuance granted by judge sua sponte or at request of the D if judge granted
          such continuance of the basis of finding that the ends of justice outweigh
          interest in speedy trial; court must set forth reasons for finding.
               (i) Consider:
                        (a) Would failure to grant make continuation of proceeding
                            impossible or result in miscarriage of justice
                        (b) Whether case is unusual or complex due to number of D, nature
                            of the prosecution, novel questions of fact or law, otherwise
                            unreasonable to expect adequate preparation
                        (c) Unreasonable to expect indictment in 30 days from arrest
                        (d) Would deny D reasonable time to obtain counsel, deny D or
                            government continuity of counsel, deny necessary time for
                            effective prep
                        (e) No continuance for lack of diligent prep or failure to obtain
                            available witnesses by government
       e. Any period of delay (but less than 1 year) ordered by court by preponderance
          of evidence for evidence in foreign country
       f. See 3161(j) regarding special rules for D in custody
4. Calculate time: if over time period, violation
5. Remedy
       a. Dismissal
               (i) Arrest-indictment more than 30 days
               (ii) Charges filed/first appearance – trial
                        (a) D has burden of proof supporting the motion but P has burden
                            for evidence relating to unavailable witnesses
               (iii) D is detained under Bail Reform Act: no detainee shall be held in
                     custody pending trial after 90 day period
       b. Dismissal without prejudice depending on:
               (i) Seriousness of offense



                                                                                        22
                              (ii) Facts and circumstances leading to dismissal
                              (iii) Impact of re-prosecution on STA and administration of justice
                              (iv) D should argue prejudice if dismissal is P or judge’s fault
                       c. Sanctions for D or P counsel
                              (i) If:
                                      (a) Knowingly allow cases to be set without disclosing that witness
                                          will be unavailable
                                      (b) Filing frivolous motion for purpose of delay
                                      (c) Knowingly false and material statement for the purpose of
                                          continuance
                                      (d) Willfully fails to proceed to trial without justification
                              (ii) Type of sanction
                                      (a) Fines: D’s appointed counsel, reduced compensation; Retained
                                          counsel, ¼ of compensation; P, fine up to $250
                                      (b) Deny right to practice up to 90 days
                                      (c) Report with disciplinary committee
VI. Right to Counsel
       A. Constitutional Right
               1. When Does Right to Counsel Apply?
                      a. Generally: during critical and adversarial stages of trial
                      b. Pre-trial: No right to counsel prior to adversarial proceedings (Kirby)
                              (i) No right to counsel in the GJ: secrecy; GJ is investigatory; contents
                                    can’t be used at trial
                              (ii) No right to counsel in pre-indictment line-p or photo identification
                                    line-up
                              (iii) During interrogation, 5th Amendment guarantees right to counsel in
                                    order to protect 5th Amendment rights (Miranda)
                           th
                      c. 6 Amendment Right to counsel attaches at first judicial proceeding: formal
                         charge or when government has used the judicial machinery to signal a
                         commitment to prosecute (Rothgery)
                              (i) Where accusation is filed with a judicial officer and prompts
                                    restrictions on the accused’s liberty in order to facilitate prosecution
                      d. Right to counsel at trial: Gideon v. Wainwright: 6th Amendment guarantees
                         right to the aid of counsel at trial; the right is fundamental and is incorporated
                         against the states through the 14th Amendment
                              (i) Advances key concerns of criminal justice: reliability and equality
                              (ii) Required for enforcement of other rights
                      e. Right to counsel during appeals: under equal protection, it would be
                         discrimination for wealthy Ds to have appeals heard while indigents do not
                         (Douglas)
                              (i) But no right to counsel on discretionary appeal; appeal is a sword to
                                    upset prior determination of guilt, not a shield to protect against being
                                    haled into court; 14th Amendment does not require absolute equality
                                    and it does not equalize economic conditions (Ross). D will have had
                                    aid of counsel during first appeal, a transcript of trial, appellate brief
                                    on his behalf, and an opinion from the first court of appeals



                                                                                                           23
      2. For What Types of Cases Is Counsel Required?
              a. Felony cases: counsel always required (Gideon)
              b. Misdemeanor cases: only if D is actually incarcerated or sentenced to
                 suspended sentence
                      (i) Argersinger: No person may be imprisoned without right to counsel
                      (ii) Scott: Right to counsel only if D actually imprisoned; if crime only
                            carries a risk of incarceration, not required to appoint counsel (if no
                            counsel, can’t sentence to jail)
                      (iii) Pre-trial detention is not imprisonment? Salerno
                      (iv) Shelton: Suspended sentence requires counsel
                               (a) If D violates terms of probation, he will be imprisoned for the
                                   underlying offense, not the violation; counsel at probation
                                   revocation doesn’t help because the question is only whether he
                                   violated
                      (v) Even if sentence is time served, right to counsel: incarceration is part
                            of the sentence
B. Waiver and Self-Representation
      1. There is a historical and constitutional right to represent oneself at trial (Farretta)
              a. Protects autonomy and right to craft his own defense
              b. Waiver must be knowing and voluntary
                      (i) Record must show that an accused was offered counsel but
                            intelligently and understandingly rejected the offer (Carnley v.
                            Cochrane)
                      (ii) At plea, D need only be informed of the nature of the charges, the
                            right to be counseled regarding the plea, and the range of allowable
                            punishments; need not inform D that he risks overlooking viable
                            defense (Tovar)
      2. Limits
              a. D must clearly and unequivocally waive right to counsel; must timely assert
                 right; no constitutional obligation to inform D of right to proceed pro se in
                 absence of clear indication that he wishes to proceed without counsel;
              b. State may limit a D’s right to self-representation by insisting on representation
                 when D is not mentally competent to conduct his own defense (Edwards)
                      (i) The standard for competency to stand trial and competency to
                            represent oneself is different
                      (ii) When mentally incompetent represents herself, it does not comport
                            with dignity
              c. State may appoint standby counsel (McKaskle)
                      (i) D must have actual control: standby cannot control tactical approach
                            or speak instead of the witness
                      (ii) Jury’s perception can’t be influenced: Counsel’s participation outside
                            presence of the jury is ok;
                      (iii) No constitutional right to standby counsel or hybrid representation
                      (iv) Once D invites or aggress to substantial participation by counsel,
                            subsequent appearances must be presumed to be with acquiescence




                                                                                                 24
                       (v) Generally no ineffective assistance of standby counsel claims unless
                             erroneous legal advice
               d. Some states have appointed where representation is absolutely necessary to
                  ensure a fair trial: physical disability/speech impediment or educational
                  deficiency (Pickens)
               e. No right to self-representation on appeal (Martinez)
C. Denial of Counsel
       1. Actual or constructive denial of the assistance of counsel presumed to result in
          prejudice
               a. Denial at prelim: relief unless prosecutor can prove denial was harmless BRD
               b. Remedy for any actual or constructive denial is new proceeding (Perry)
       2. Interference: prejudice presumed
               a. Where trial court has prevented counsel from utilizing certain adversarial
                  procedures
       3. Ineffective Assistance of Counsel (Strickland)
               a. Performance was deficient: unreasonable considering all the circumstances,
                  action cannot be considered sound trial strategy; not the result of a reasonable
                  professional judgment; strategic choices made after thorough investigation of
                  law and facts are virtually unchallengeable
                       (i) Presumed to be reasonable strategy
               b. D must affirmatively show a reasonable probability of prejudice: undermine
                  confidence in the outcome; totality of the evidence (weak evidence likely to be
                  infected); any adverse change in the outcome
                       (i) Adverse impact = sentence, charge
                       (ii) Structural claims (failure to raise Batson claim, racial discrimination)
                             may presume prejudice; very difficult to assess whether
                             discrimination affected outcome
               c. Ds who retain their own lawyers are entitled to less protection than D for
                  whom the state appoints counsel: decision to retain a particular lawyer could
                  reduce or forfeit the D’s entitlement to constitutional protection (Cuyler)
       4. Actual conflict of interest, prejudice presumed (Cuyler) because counsel breaches duty
          of loyalty
               a. Examples
                       (i) Classic conflict: joint representation of co-Ds in the same trial
                       (ii) Co-Ds tried separately
                       (iii) Previous representation or current representation in another matter a
                             victim
                       (iv) Third party with interest in the case is paying counsel’s fees
                       (v) Fee arrangement creates conflict
                       (vi) Counsel involved in same transaction and fear possible criminal
                             prosecution
                       (vii) Counsel under investigation by same prosecutor’s office
                       (viii) Counsel facing possible criminal or disciplinary consequences
                             from representing the D
                       (ix) Counsel has obligation to deliver physical evidence to the police
                       (x) To be called as a prosecution witness



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



                                                                                                  26
                             (iii) System might be better off if Warren court had worried less about
                                   criminal procedure and more about criminal justice
VII.   Access to Evidence
       A. Introduction
               1. Rationales
                       a. Pro-discovery
                               (i) D’s statement ensure accuracy (discover fabrications) and fairnrness
                               (ii) Encourages settlement
                               (iii) Avoid surprises at trial
                       b. Anti discovery rationales
                               (i) May lessen witness protection or protection for undercover
                                     informants
                               (ii) Perjury concerns: alibi or defense to fit with P’s case?
                               (iii) Compromises work product protections
               2. Models
                       a. FRCrP 16 narrowest model
                       b. ABA 1st: Most states follow this in-between approach
                               (i) Defense discovery equivalent to FRCrP 16
                               (ii) Prosecution standards roughly similar to Rule 16 + Rule 12.1 (notice
                                     of alibi) and Rule 12.2 (notice of an insanity defense
                       c. ABA 3d: Broadest discovery
               3. Disclosure always made subject to possible restriction through judicial issuance of a
                  protective order on “sufficient showing” (Rule 16)
       B. Defendant’s Constitutional and Statutory Rights to Discover Government Evidence
               1. Prosecutors has a constitutional duty to disclose exculpatory evidence reasonable
                  likely to affect the outcome at trial or undermine confidence in the result (Brady;
                  Bagley)
                       a. Test
                               (i) Favorable: substantive and impeachment treated the same
                               (ii) Evidence: not inadmissible information; majority of states require
                                     disclosure if it could lead to admissible evidence
                                        (a) ABA rules would not limit to evidence
                               (iii) In possession or control of P or agents
                               (iv) Known to P or agents working on the case
                                        (a) ABA would include investigative team; P not required to
                                            conduct investigation for evidence though
                               (v) Material to guilt or sentence
                                        (a) ABA would have P turn over all evidence
                               (vi) Not disclosed: if D had other access to info, courts may not find a
                                     violation
                               (vii) In time to make fair use at trial
                                        (a) ABA would require in time for plea or in time for sentence
                                            mitigation
                       b. Violations (Agurs and Bagley)
                               (i) Use of perjured testimony/failure to disclose that testimony used to
                                     convict was false: P must show error was harmless



                                                                                                       27
              (ii) Failure to respond to general request or specific request: D must show
                    (1) error and (2) reasonable probability that, had the evidence been
                    disclosed, the result of the proceeding would have been different;
                    sufficient to undermine confidence in the outcome
                        (a) Taken from Strickland
                        (b) Materiality standard does not require D to show by
                            preponderance (more likely than not) that outcome would be
                            different, only to undermine confidence in result; does not need
                            to show that there was not enough to convict; once
                            constitutional error is found, no need for harmless error
                            analysis (Kyles v. Whitley)
                        (c) Court can consider whether failure to respond to a specific
                            request had adverse effect on preparation or presentation of
                            defense
       c. Timing
              (i) In time for effective use at trial: scientific evidence must be disclosed
                    sooner
              (ii) When evidence is covered by Jencks and Brady (prior recorded
                    statements of a prospective government witness), courts are divided
                    on timing
              (iii) Disclosure of impeachment material need not be made in time to
                    consider before plea agreement (Ruiz)
                        (a) Impeachment is about fairness at trial
                        (b) Plea only requires understanding nature of right, not detailed
                            consequences of invoking
                        (c) Could interfere with pleas
              (iv) ABA Model Rules argue that material should be turned over in time
                    to be used in deciding whether to plea
2. Defendant’s Oral Statements, 16(a)(1)(A)
       a. Rationale
              (i) Less worry about witness intimidation;
              (ii) D may need to prevent perjury or inaccuracy
              (iii) Encourages settlements
       b. Rule:
              (i) Upon D’s request
              (ii) Turn over substance of statement
              (iii) If relevant (protects against statements made in connection with other
                    ongoing inquiries)
              (iv) In response to interrogation by person knew was government agent
                        (a) Protects against discovery of statements by undercover agents
              (v) If government intends to use the statement at trial
                        (a) Avoid statements only used for impeachment and keeps
                            prosecutors from having to seek out discoverable item
              (vi) And knows or should know through due diligence that the statement
                    exists
3. Defendant’s Written or Recorded Statements, 16(a)(1)(B)



                                                                                         28
        a. D request for inspection, copying or photographing
        b. Relevant written or recorded statement if
                (i) In governments possession, control, or custody
                (ii) P knows or should know statement exists
        c. Portion of written record containing substance of oral statement if
                (i) Relevant and
                (ii) D made statement in response to interrogation by person D knew was
                      government agent
        d. D’s recorded testimony before GJ
                (i) Regardless of whether P intends to use
        e. If contained in another witness’s statement, controlled by rules about witnesses
4. Statements to Undercover Agents are not discoverable
        a. D doesn’t know they are government agents
        b. Protects identity for ongoing investigations
5. Witness lists
        a. Generally not discoverable under FRCrP/state law unless strong showing of
           special need (Stroop):
                (i) Difficult to prepare defense
                (ii) Complex paper trial with multiple Ds
                (iii) Critical, dispositive evidence would flow from anecdotal testimony or
                      of other unindicted coconspirators
                (iv) No indication that D has past criminal record or involvement in
                      violence or threat of violence
                (v) P does not indicate that providing witness name will make witness
                      less likely to show at trial
        b. Some states, ABA1st recommend prosecutor turn over witness list
        c. ABA 3d requires disclosure of persons known to have knowledge of relevant
           facts, regardless of whether they will be called as witnesses
6. Statements of Others
        a. “Statement” §3500(e) and FRCrP 26.2
                (i) Written statement made and signed by witness, or otherwise adopted
                (ii) Substantially verbatim, contemporaneously recorded recital of oral
                      statement contained in recording or transcript of recording
                          (a) Notes on statements was not a recorded statement because it
                              was not recorded contemporaneously
                          (b) But notes about a statement (including statements contained in
                              police and investigative reports) count under ABA 3d rules
                (iii) Statement to GJ or transcript
                (iv) Applies to witness’s plea agreements
        b. Pre-trial, no requirement to turn over witness statements, 16(a)(2)
                (i) Could lead to witness intimidation
                (ii) Time limit is rarely enforced: statements are routinely ordered before
                      trial; judge may tell jurors that recess is due to prosecution’s refusal to
                      turn over statements before trial
        c. Some states provide for discovery of written, recorded, or oral statements of
           co-Ds (ABA 3d)



                                                                                              29
                (i) States following ABA 1st only require co-D statements where co-Ds
                      will be jointly tried
                (ii) States differ as to whether only statements intended to be used at trial
                      are covered
        d. After witness testifies on direct, Jencks Act
                (i) D moves and court orders P to turn over any prior statements by the
                      witness that relate to testimony that are in P’s custody
                (ii) P may request en camera review is government claims that statement
                      does not relate to testimony
                (iii) Court may allow recess to allow D to review
        e. No access to statements by deceased witnesses
7. D’s Prior Record, 16(a)(1)(D) discoverable upon D’s request if in possession, custody,
   or control or if P should know record exists
8. Documents and Objects, 16(a)(1)(E)
        a. Photo books, papers, documents, data, photographs, tangible objects,
           buildings, places
                (i) Does not include state/agency records
        b. Rule 16 steps
                (i) Upon D’s request
                (ii) In government’s possession custody and control
                (iii) Material to preparing defense OR P intends to use item in case in
                      chief OR object was obtained from or belongs to D
                          (a) Some states only require if it “pertains to the case”
9. Expert Reports, Discoverable under 16(a)(1)(F)
        a. Rule 16
                (i) D’s request
                (ii) Written summary of expert testimony including opinion, basis and
                      reasons for opinions and qualifications (name)
                (iii) If P intends to use at trial
        b. Rationale
                (i) Once opinion formed, little chance of intimidation or influence
                (ii) Lessens disadvantage between P’s early and complete investigation
                      and D’s late and limited one
                (iii) Opportunity to examine closely and potentially seek assistance of
                      defense expert
10.     Police reports
        a. Generally protected by work product, even though police is not an attorney; or
           specifically exempted or by internal memo exemption
                (i) Some rules (FL) provide for disclosure unless court protective order
        b. Rationale
                (i) Preserving confidentiality of police sources, continuing
                      investigations, investigative tactics
                (ii) Avoiding defense misuse to build red herring defenses
                (iii) Encouraging filing of complete reports for internal review process
11.     Government reports memoranda or internal documents
        a. Generally not discoverable, FRCrP 16(a)(2)



                                                                                          30
                     (i) Subjecting these to disclosure might encourage statement’s preparer
                           to be less accurate
             b. Protected by work product protections unless party seeking discovery shows a
                substantial need for the time and inability to obtain without undue hardship
                     (i) If turned over should be careful not to produce mental impressions,
                           conclusions, opinions, or legal theories of an attorney
                     (ii) No distinction between prosecution and defense in need for a work
                           product doctrine (Nobles)
                     (iii) ABA 3d provides absolute protection only for opinion work product
                           of the legal staff (does not extend to police reports)
                     (iv)
             c. ABA 3d provides for discovery of material and information in possession or
                control of members of the attorney’s staff and any others who either regularly
                report to have reported on this particular case
      12.    Depositions
             a. Not typically a discovery method unless 15(a)(1) applies\
                     (i) P must bear cost for indigent; expensive and should be rarely used
                     (ii) Concerned about protecting witnesses from confrontation by the D;
                           unnecessary burden even if no fear
                     (iii) D could have right to attend deposition, leads to security risks
             b. Rule
                     (i) If D shows (1) need to preserve testimony OR (2) exceptional
                           circumstances and interests of justice
                              (a) Witness about to die, be deployed
C. Government’s Rights to Discover Defendant Evidence
      1. Rationale
             a. Limiting defense discovery was specific to that situation of protecting
                witnesses. Still concerns about accuracy, efficiency, settlement, fairness
      2. Limits
             a. Due Process requires reciprocal discovery between D and P (Wardius)
             b. Work product (and Rule 16(b)(2)(A)) protects reports, memoranda, or other
                documents made by the D or D’s attorney or agent
      3. Notice of Defenses
             a. 12 states require the D give pretrial notice of the intent to rely on defenses
                (self-defense, entrapment, duress, intoxication, authority)
                     (i) Not bound to raise the listed defense at trial, and prosecution cannot
                           use against the D his failure to do so
             b. Notice of alibi does not violate D’s 5th Amendment right not to be compelled
                to be a witness against himself (Williams)
                     (i) Petitioner was only compelled to accelerate the timing of his
                           disclosure, because he would have had to disclose at trial
                     (ii) Also serves the function of avoiding mid-trial delay and disposing of
                           some cases without trials
                     (iii) Dissent: But then D cannot later abandon the alibi and gives the P too
                           much info about people who may know about D, which leads to




                                                                                               31
                       evidence (related or unrelated offenses), rebuttal, too much
                       information about D’s trial strategy (Dissent, commentary)
                  (iv) State responses have varied: many states provide prosecution
                       discovery of defenses to be raised, defense witnesses, written or
                       recorded statements of prospective witnesses, documents and tangible
                       items
                  (v) Rule 12 requires reciprocal state discovery if D files notice of alibi
                       (see below)
4.   Witness Lists
         a. 25 states and ABA 3d provide for D disclosure of names and addresses of
             witnesses D intends to introduce at trial other than the D
                  (i) These states also require defense discovery of P’s witness lists
         b. FRCrP 16 does not provide for witness disclosure, except alibi witnesses in
             Rule 12
                  (i) Disclosure lessens P’s burden of proving its case-in-chief
                       (Prudhomme, Cal.)
                          (a) But later amendment to Cal state constitution led to new
                              decision upholding reciprocal disclosure of the names and
                              addresses of witnesses it intends to call at trial (Izazaga)
         c. Alibi Witnesses, Rule12.1: After P request, D must turn over name, address,
             and number of each alibi witness on whom the D intends to rely
                  (i) But if D files alibi notice, P must disclose the name of each witness
                       that the government intends to rely on to establish that the D was
                       present at scene of the alleged offense and any rebuttal witness to D’s
                       alibi defense
5.   Witness Statements
         a. States that require witness lists also require written or recorded statements of
             the listed witnesses when statement is in its possession
                  (i) Does not violate 5th Amendment protection against self-incrimination
                       (Nobles): compelled statements are those of third parties D did not
                       prepare the report and did not convey any information to the
                       investigator; the fact that the investigator works for D is immaterial
         b. Mass. order requiring defense furnish statements by prosecution witnesses that
             D intended to use at trial upheld (Commonwealth v. Durham)
                  (i) Did not violate constitutional confrontation right
                  (ii) Dissent argued that it impaired cross-exam by giving prosecution
                       advance notice of inconsistencies
         c. Rule 16(b)(2)(A) prohibits discovery of statements made to D or D’s attorney
             if made by D, government or defense witness, or prospective government or
             defense witness
6.   Documents and Tangible Objects
         a. FRCrP and both ABA standards provide for court-ordered defense disclosure
             of documents and tangible items the defense intends to use at trial
7.   Scientific reports
         a. Rule 16(b)(1)(B) requires disclosure if
                  (i) D requests



                                                                                            32
                     (ii) Item is within D’s possession, custody, or control, AND
                     (iii) D intends to use the item or call the witness at trial
              b. Limits
                     (i) Due Process requires reciprocity
                     (ii) 5th does not apply because D himself is not being asked to testify
                           (Nobles)
                     (iii) But Nevada has found that it does violate self-incrimination because
                           D is forced to disclose information that he never intended to disclose
                           at trial, some of which could be incriminating (Binegar)
                     (iv) NJ found that forcing report of experts violates right to counsel
                           because D must be able to rely on confidentiality in seeking an
                           expert’s advice (Mingo)
                               (a) Other states have rejected
                     (v) Attorney-Client privilege could bar (p. 1227) in some states if
                           attorney or client discloses info for purposes of trial prep
                               (a) Other states reject because expert is not attorney; some allow
                                   privilege if client makes statements to the expert or attorney
                                   reveals private info received from the client
              c. Easiest case for discovery because government will need to consult its own
                 experts
D. Remedies for Discovery Violations
      1. Violations by the Prosecution
              a. Range of remedies
                     (i) Ordering immediate disclosure
                     (ii) Granting a continuance
                     (iii) Excluding evidence: but this could harm accuracy and courts are
                           hesitant
                     (iv) Charge directing the jury to assume certain facts that might have been
                           established by nondisclosed evidence
                     (v) Contempt
                     (vi) Mistrial: but there must be manifest necessity or new trial will be
                           barred by DJ
                     (vii) Dismissal of the prosecution
                     (viii) Excluding testimony of unlisted witnesses (alibi and insanity
                           notice statutes) except for good cause shown
              b. Selecting a remedy
                     (i) Consider: Culpability, prejudice, lowest risk to accuracy
                     (ii) Preference for continuance where party responsible for violation acted
                           in good faith; court should determine if potential prejudice can be
                           alleviated by continuance
                               (a) But if length of needed continuance would be too disruptive or
                                   continuance won’t respond to prejudice (after opposing side has
                                   committed itself to an inconsistent position), may need to
                                   consider other remedies: exclusion, jury instruction, mistrial
                     (iii) Late disclosures that contradict a misleading defense have led to
                           contradicting remedies, depending on the court



                                                                                               33
                              (a) Letter that undercut D’s claim of good character and non-
                                  involvement in the crime: court found that D had knowledge of
                                  letter’s existence (he had written it) and therefore there was no
                                  prejudice (People v. Taylor, Mich.)
                              (b) Testimony that undercut D’s Costa Rica alibi: attacked very
                                  foundation of the defense strategy and so serious a detriment to
                                  preparation should lead to a new trial (Noe, 11th Cir)
      2. Violations by the Defendant
             a. Remedies: Exclusion?
                     (i) Exclusion would implicate D’s right to present a defense and right to
                           the compulsory process
                     (ii) But excluding testimony of a favorable witness is not absolutely
                           prohibited by constitutional right to use of compulsory process.
                           Pattern of discovery violations may create suspicions that violations
                           were designed to present fabricated testimony, and appropriate to
                           exclude (Taylor v. Ill)
                              (a) If omission was willful and motivated by a desire to obtain a
                                  tactical advantage and minimize effectiveness of cross and
                                  ability to get rebuttal evidence, appropriate to exclude
                              (b) Integrity of judicial process at stake; D is penalized for
                                  attorney’s conduct (Dissent disagreed)
                     (iii) Allowing a surprise witness would lead to delay, rebuttal witnesses;
                           would not cure prejudice because P would have to recall earlier
                           witness to rebut and would seem surprised and exclusion was proper
                           (Tyson v. Trigg)
             b. Generally may not exclude D’s testimony (Rule 12.1(e)
                     (i) Does right to testify require greater constitutional protection than right
                           to present witnesses; is concern less important since state has to prove
                           D’s presence
                     (ii) Some states have barred Ds from giving alibi testimony beyond denial
                           of presence at the scene when no alibi notice was provided
E. Government’s Constitutional Duty to Preserve Evidence
      1. Access to witnesses
             a. Deportation of witnesses violates compulsory and/or due process if D can
                show that evidence lost would be both material and favorable to the defense;
                sanctions warranted only if there is a reasonable likelihood that testimony
                could have affected the trier of fact (Valenzuela-Bernal)
                     (i) Brady applies but deportation alone is not enough to establish a
                           violation
                     (ii) Government has manifold responsibilities in immigration cases
             b. Intimidation: State (judge or prosecutor) may not impose pressure on witness
                not to testify (Webb);
                     (i) Witness must be important to the defense, material
                     (ii) D was denied witness’s testimony as a result of the prosecution’s
                           action (threats to prosecute for perjury)




                                                                                                34
                                       (a) Prosecutor should convey perjury information through witness’s
                                           counsel, not personally
                                       (b) Recent Broadcom case dismissed indictment where prosecutor
                                           called witness and threatened to prosecute for perjury if
                                           testimony differed
                      c. Immunity: Court can only for granting immunity (D’Antonio) only in
                         egregious cases; immunity is a charging decision
                              (i) P discriminatorily granted immunity to its own witnesses: does it look
                                    like prosecution is game-playing with grants
                              (ii) Witness has material, exculpatory, noncumulative evidence
                              (iii) Information is unobtainable from other sources
               2. Undercover agents
                      a. Rovario: informer’s privilege may give way to need for a fair trial where
                              (i) Is the informant the sole participant in the transaction and central to
                                    the events?
                              (ii) Does the witness have exculpatory evidence (Brady applies)
                              (iii) Balance need to reveal identity: crime charged, possible defense,
                                    significance of the informer’s testimony, and other relevant factors
               3. Preservation/Destruction of Physical Evidence
                      a. If destruction of evidence was done in bad faith, violation of due process
                         (Youngblood)
                              (i) If state has a destruction policy that it followed, it is not destroying
                                    evidence in order to win
                              (ii) But many states have adopted a multi-factored balancing test: is this
                                    the kind of evidence that would exonerate? How culpable was the
                                    state?
                      b. After conviction, D does not have the same liberty interest as someone
                         presumed innocent and has no constitutional right to preservation of evidence
                         (Osborne)
               4. Sanctions
                      a. Loss of conviction
                      b. Contempt
                      c. Disciplinary sanctions from violating Rule 3.8 or use of false evidence
VIII.   Pleas and Bargaining
               1. Rule 11: plea agreement may specify that government will
                      a. Not bring or will move to dismiss, other charges
                              (i) May also charge with lesser included offense
                              (ii) Requires leave of the court to dismiss (FRCrP 48(a))
                      b. Nonbinding recommendation or not oppose D’s request that a particular
                         sentence or range is appropriate or that particular provision or sentencing
                         factor does or does not apply
                              (i) D may not withdraw the plea if the court does not follow the
                                    recommendation or request; always a risk
                      c. Agree to specific sentence or sentencing range: binding if the court accepts
               2. ABA Standards 14-1.8: Appropriate for the court to approve sentence concessions
                  where



                                                                                                       35
       a. D expresses genuine contrition and shows a willingness to assume
          responsibility for his or her conduct
       b. Concessions will make alternative correctional measures available where these
          will be effective
       c. D has demonstrated remorse or consideration for victims in foregoing public
          trial
       d. D has given or agreed to give cooperation to apprehend equally or more
          serious criminals
3. Pros for P
       a. Administrative efficiency: alleviates overcrowded dockets
       b. Using for weak cases likely to lose at trial
       c. Where D can cooperate and help convict others
       d. Spares V from trial
       e. Punishment starts sooner, increased time for rehabilitation
       f. Acceptance of responsibility allows for remorse
       g. Avoid dangers of pre-trial release
       h. D can waive pre-plea errors
4. Pros for D
       a. Leniency: allow prosecutors to manipulate charge and courts to manipulate
          sentences for less culpable offenders
                (i) Sentencing breaks;
                         (a) Downward departures
                         (b) Dropped sentencing enhancements
                         (c) Foregoing mandatory minimum
                         (d) Discretionary alternative sentences (treatment, suspended,
                             stayed)
                         (e) Stipulating to criminal history or facts
                         (f) Stipulating a sentence cap
       b. Expression of remorse
       c. Avoid uncertainty/risk of trial: avoid cost of gambling and losing (Scott)
       d. Negotiate for other concessions: assets, protection, don’t charge my mother
5. Problems
       a. Many plea agreements require D to waive appeal rights
                (i) Waiving future risk is uninformed
                (ii) Even waives serious error
                (iii) Although many courts would find an exception for actual innocence
                      because of change in substantive law (Bauza)
       b. May scare innocent people into pleading
                (i) But often it’s a question of value judgments about conduct: we simply
                      choose to criminalize or not criminalize some conduct and there is no
                      objective truth about whether it was criminal or not (Enker)
                (ii) If innocent person receives a giant discount for pleading, does this
                      start to look like coercion? (Schulhofer)
       c. Privatizes public disputes
                (i) Destroys the idea of objective societal determination of moral guilt
       d. Many V’s want more punishment



                                                                                        36
              e. Dilutes moral force of criminal sanction and distorts public perception and
                 criminal legislation (Arenella)
              f. Sentencing disparity between those who plea and those who exercise right to
                 go to trial. But:
                       (i) 1st Cir. has held that sentencing disparity does not unfairly burden the
                             right to go to trial (Rodriguez)
                       (ii) Proper for the court to consider the D’s whole person and personality
                             for whatever light those may shed on the sentencing decision
                             (Grayson)
                       (iii) Does putting victim through trial, eliciting details of the crime merit a
                             higher sentence?
                       (iv) Rewarding person for positive benefits of apprehending others
B. Due Process: Intelligent and Voluntary
       1. Knowing and Intelligent
              a. D must be aware of true nature of charges (Brady)
                       (i) Includes knowledge of the critical elements (intent in 2nd degree
                             murder) (Henderson)
                       (ii) Where counsel and the court do not correctly understand the essential
                             elements (where higher court later interprets meaning of the statute),
                             may challenge on habeas (Bousley)
                       (iii) Where nature of charge and elements explained by competent counsel
                             (Stumpf)
                       (iv) Critical elements may include: meaning of attempt
              b. Whether D was aware of actual sentencing possibilities and if not, whether
                 accurate info would have made a difference in plea (Williams)
                       (i) But not actual Guidelines calculation (Andrades)
                       (ii) Generally no responsibility to advise about collateral consequences
                       (iii) Does Padilla (holding that effective counsel must warn about
                             deportation consequences) affect this responsibility?
              c. Advised by competent counsel (Brady)
                       (i) Where D can show counsel was ineffective and, but for bad advice,
                             would have refused plea and gone to trial (Hill)
              d. Nothing to indicate that he was incompetent or otherwise not in control of his
                 mental faculties (Brady)
              e. Brady material not constitutionally required to be disclosed in time for plea
                 (Ruiz)
       2. Voluntary Examples
              a. P may seek higher charges if D doesn’t take a plea (Hayes)
                       (i) Prosecutor could have brought either charge from the beginning and
                             substituting the higher charge after D refuses to plea isn’t punishment
                       (ii) D simply chose to forego leniency
                       (iii) Taking a plea would have allowed him to avoid the cost of gambling
                             and losing at trial; he may be in the same position as D who goes to
                             trial and loses (Scott)
                       (iv) A contrary rule would incentivize prosecutors to always bring the
                             higher charge in the beginning



                                                                                                   37
              b. D may take plea to avoid possibility of death sentence (Brady)
              c. D receives mandatory higher sentence after trial as compared to optional lower
                 sentence with plea (Corbitt v. NJ)
       3. When Plea May be Involuntary
              a. Knowing plea must stand unless induced by (Shelton, 5th Cir)
                      (i) Threats (or promises to discontinue improper harassment)
                      (ii) Misrepresentation (including unfulfilled of unfulfillable promises)
                      (iii) Or perhaps by promises that are by their nature improper as having
                            no proper relationship to the prosecutor’s business (bribes) (5th Cir)
              b. Plea made on constitutionally defective advice from counsel (Bradshaw v.
                 Stumpf)
                      (i) Where D bypassed plea after counsel’s errors and was convicted,
                            prejudice is established by showing a reasonable probability that,
                            absent the attorneys conduct, the D instead would have accepted the
                            bargain and pled (Julian v. Bartley)
                      (ii) Courts differ as to remedy: prosecution may be obligated to renew the
                            original plea offer (Nunes v. Mueller, 9th Cir) or court may order
                            retrial which gives prosecutor discretion (Julian, 7th Cir)
              c. Could not have understood the terms of the bargain he and the state agreed to
                 (Bradshaw v. Stumpf)
              d. Statutory scheme where highest penalty is reserved exclusively for those who
                 opt for trial (Jackson)
              e. Wired pleas: When prosecutor enters agreement with 2 co-Ds that requires
                 both to plead or no deal; judges will carefully scrutinize for voluntariness
                 based on circumstances of the deal
                      (i) But Pollard (DC Cir) found that wiring D’s plea to his wife’s plea did
                            not make it involuntary
C. Breach and Remedies for Breach
       1. Breach by Prosecution
              a. When a plea rests in any significant degree on a promise or agreement of the
                 prosecutor, so that it is part of inducement or consideration, violation of that
                 promise or induce is breach (Santobello)
              b. When a prosecutor makes a bargain, prosecutor can withdraw unless the D has
                 detrimentally relied on the agreement (Mabry). Prosecutor is not held
                 constitutionally responsible for making and withdrawing the first offer and D
                 cannot reasonably attribute this action to his own counsel. Detrimental
                 reliance includes
                      (i) Providing info to the government
                      (ii) Testifying in court
                      (iii) Confessing guilt
                      (iv) Returning stolen property
                      (v) Monetary restitution
                      (vi) Failing to file a motion to have charges presented to a GJ
                      (vii) Submitting to a lie detector test
                      (viii) Waiving procedural guarantees
              c. Things that aren’t breach



                                                                                               38
                      (i) Not breach where court considers other conduct relevant to sentencing
                            (US Sentencing Guidelines)
                      (ii) Not breach for P to insinuate that harm was great where agreement
                            included promise not to seek life sentence (Pollard)
                      (iii) Promising to outline D’s cooperation and then calling it half-hearted
                            (Pollard)
       2. Remedy for Prosecution Breach
              a. Santobello remanded to lower court for consideration of whether remedy
                 should be specific performance or allowing D to withdraw his plea (and enter a
                 new one or go to trial?)
                      (i) J. Douglas thought weight should be accorded to D’s preference of
                            remedies
                      (ii) J. Marshall and dissent thought plea should be vacated
       3. Breach by Defendant
              a. Before the court accepts the plea, the D may withdraw for any reason or no
                 reason (FRCrP 11(d)(1))
              b. Before sentencing, D may usually withdraw plea with good cause (FRCrP
                 11(d)(2))
              c. After sentencing cannot withdraw unless agreement included a term binding
                 the judge’s discretion in sentencing and the limitation was accepted by the
                 judge (as in a (c) plea), but the sentence imposed violated that limitation
              d. Where D refuses to testify (even for second or successive trials), state can
                 move forward as though no agreement had been reached (Ricketts)
                      (i) D should make sure there is no clause that says P is sole decision-
                            maker on whether breach occurred

D. Judge’s Role
       1. Rule 11:
               a. Before accepting a plea, court should inform D of right to plead not guilt, right
                  to jury trial, right to counsel, confrontation right, waiver of rights, nature of the
                  charge, maximum possible penalty including imprisonment, fine, and term of
                  supervised release, mandatory minimum penalty, applicable forfeiture,
                  restitution, special assessment
               b. Ensure that plea is voluntary and did not result from force, threats, or promises
               c. Ensure factual basis for the plea
       2. If judges believes D was coerced into waiving or that waiver was otherwise
          involuntary
               a. D must understand the charge, including critical elements (Henderson)
               b. D must understand the max sentence, but not collateral consequences (parole,
                  mandatory minimum, recidivist penalties for later crimes, SORNA, restitution,
                  or forfeiture)
               c. Prosecutor can’t make a misrepresentation, use perjured testimony
       3. If judge disagrees with the charge bargain (too lenient, too harsh, wrong charge), he
          has very little power to second-guess
               a. Separation of powers requires that judges not interfere with charging decisions
                  (Newman)



                                                                                                    39
                               (i) May not reject because the charge itself is too lenient (Ellis)
                       b. No authority under FRCrP 48(a) unless government harasses D by repeatedly
                          bringing charges and dismissing them (In re US)
               4. If judge disagrees with sentence
                       a. He may reject if he believes sentence is too lenient or too harsh (Ellis)
                       b. If agreement contains illegal sentencing terms (banishment, military service,
                          coerced contributions, shaming, giving up profits), the judge is permitted but
                          not required to reject
                       c. If court rejects a plea rejects an A (charges dropped) or C (sentence specified)
                          plea pursuant to Rule 11, must give D opportunity to withdraw (Hyde)
               5. Where D waives appeal rights: courts are divided
                       a. Federal courts generally think trial judges abuse discretion to reject plea on this
                          basis
                       b. State courts are divided
               6. Where there is no factual basis for the plea
                       a. Court may accept guilty plea even if D insists on innocence (Alford)
                               (i) But judge may refused to accept; some states ban
                       b. Constitution only requires factual basis for Alford pleas, but state statutes and
                          Rule 11 require factual basis for all pleas
                       c. D may also plea to a crime other than the one committed if there is factual
                          basis for at least one charge (Zhao)
IX. Trial by Jury
        A. Scope of the Right to Jury
               1. Rationale:
                       a. Prevent government oppression (Duncan)
                               (i) Corrupt or overzealous prosecutor; unfounded criminal charges could
                                     be brought to eliminate enemies
                               (ii) Judges could be too acquiescent to higher authority, biased, or
                                     eccentric
                       b. Opportunity for society to participate in process
               2. Waiver
                       a. D has option of waiving a jury and having bench trial (Patton)
                               (i) But FRCrP requires (and Singer upheld) that government or court
                                     may refuse to allow
                       b. Some states (NC and KY) don’t allow waiver of jury trial
               3. For What Crimes?
                       a. All felonies and misdemeanors that carry a potential of more than 6 months
                          (Baldwin)
                               (i) Anything 6 months or less presumed a petty offense (Blanton)
                               (ii) Additional statutory penalties could rebut that presumption; where
                                     legislature calls for $5000/individual or $10K for organizations, this
                                     could rebut
                               (iii) Several misdemeanors or counts should not be joined in determining
                                     whether it is petty (Lewis)
                       b. Depends on legislature’s assessment of seriousness




                                                                                                          40
               (i) Compare to right to counsel which requires actual incarceration and
                   depends on judge’s assessment of seriousness
4. Sentencing
        a. D not entitled to sentencing by jury (Spaziano)
        b. Unless statute requires finding of aggravating facts (capital Ring) (non-capital
           statute, Blakely)
5. Size
        a. Six-person jury does not violate 6th Amendment rights (Williams v. Florida)
                (i) But 5 is too few: less likely to foster effective group deliberation,
                      disparate verdicts, no meaningful minority group representation
                      (Ballew v. Georgia)
6. Unanimity
        a. Twelve person need not be unanimous (Apodaca); lack of unanimity does not
           mean “reasonable doubt”
                (i) But 6 person jury must be unanimous may be speculative at best
                      (Burch)
        b. But most states require unanimity
7. Nullification
        a. Court rules that may allow nullification
                (i) No directed verdicts
                (ii) Jury not required to explain acquittal
                (iii) No new trial after acquittal (DJ)
        b. Court rules that prevent nullification
                (i) Judge should not give formal jury instructions that jurors may nullify
                      (Dougherty)
                (ii) D not entitled to inform jurors (through argument or instruction) that a
                      guilty verdict would carry a mandatory minimum sentence (Pabon-
                      Cruz, 2d Cir)
                (iii) Courts may approve of dismissal of juror who intends to nullify
                      (Thomas, 2d Cir)
                (iv) Jurors take oath to follow the law
8. Legally Inconsistent Verdicts
        a. Ok for jury to convict on facilitation, but acquit on underlying felony (Powell)
9. Juror misconduct
        a. Forms (CRIMPROC 24.9)
                (i) Discussing the case outside of the jury deliberations
                (ii) Inspecting the scene of the crime
                (iii) Conducting experiments
                (iv) Using a dictionary to define a term in the judge’s charge
                (v) Lying during voir dire
                (vi) Considering outside information
        b. Must be raised before verdict (unless there is a non-juror witness) (Tanner)
                (i) Disrupt finality
                (ii) Full and frank discussion in the jury room, willingness to return an
                      unpopular verdict, community’s trust in the system relies on secrecy
                (iii) Can question juror suitability during voir dire



                                                                                          41
B. Selecting the Venire: Cross-Section Right
       1. Right to fair cross section is fundamental (Williams)
               a. Violated by systematic exclusion of women by requiring women to opt in to
                  jury system (Williams)
               b. Only applies to venire; no requirement that petit juries must mirror the
                  community (Williams)
       2. Federal Jury Selection and Service Act of 1968
               a. Requires random selection
               b. No citizen shall be excluded from service on account of race, color, religion,
                  sex, national origin, or economic status
               c. Procedure
                       (i) Define vicinage (geographic area)
                       (ii) Select lists
                       (iii) Qualify lists: English-speaking, felonies, etc
                       (iv) Draw venire
                       (v) Select petit jury from venire
       3. Test for 6th Amendment cross-section violation (Duren)
               a. Group alleged to be excluded is a distinctive group in the community
                       (i) Members share specific common characteristics (Barber)
                       (ii) Underrpresentation by 18-34 year-olds not distinctive
                       (iii) Amish comprise distinctive group when they make up 35% of
                             community (Fulton)
               b. Representation is not fair and reasonable in relation to the number of people in
                  the community
                       (i) Absolute disparity analysis: difference of 10% between community
                             and group’s share of the venire (Mosley)
                       (ii) Where group makes up less than 10% of population, use comparative
                             disparity: divide absolute disparity by population figure for a group;
                             40% is borderline
               c. Underrep is due to systematic exclusion
                       (i) Using voting registry (even where large number of Asians choose not
                             to register) not systematic exclusion (Le)
                       (ii) Disparity attributable to economic, cultural, social, or language
                             considerations must be deemed unavailable (Morales)
                       (iii) Systematic exclusion may be ok if it justified by a significant
                             government interest: (Greene: exclusion of those charged with
                             crimes); (Chidester: Farmers excluded during planting season)
       4. Equal Protection Challenge (6th Amendment easier to prove)
               a. Statistical under-representation of suspect class
               b. Opportunity to discriminate
               c. State has no race-neutral explanation
C. Selecting the Jury from the Venire: Equal Protection
       1. For Cause Challenges
               a. Express bias

                       (i) Person is unable to impose the death penalty and views are
                           “unmistakably clear” (Witherspoon; Witt). Only a juror who is


                                                                                                 42
                     substantially impaired in his or her ability to impose the death penalty
                     may be removed for cause. (Uttecht).
               (ii) Expressing agreement with KKK principles?
       b. Implied bias: juror says he can be impartial but court rejects
               (i) Association alone not enough; membership is not a proxy for beliefs
                     (Salamone)
               (ii) Fear that juror would use outside knowledge
               (iii) Not usually challengeable solely because of employment with the
                     government (Dennis)
                        (a) But employment at a bank that was robbed may be enough
                            (Allsup)
       c. Appealing erroneous for cause rulings:
               (i) Grants of cause challenges (knocking off someone who would have
                     been impartial) not a basis for relief if you end up with an impartial
                     jury
               (ii) Erroneous denials may be a problem if that person ends up on the
                     jury; but if you use peremptory challenge on that person, can’t claim
                     violation for being forced to use peremptory (Ross)
               (iii) But the prosecution can’t argue that Witherspoon violation is harmless
                     because he had a peremptory challenge; would insulate jury selection
                     error from meaningful appellate review
2. Questioning the Jurors
       a. No constitutional right to have questions asked of jurors (Ristaino)
       b. But during capital sentencing, right to ask about racial prejudice (Turner)
3. Peremptory Strikes
       a. Should they be eliminated?
               (i) End racial the discrimination that they inject
               (ii) Litigants can misuse if they strikes fall below the threshold
               (iii) Asks court to second-guess stated reasons (ethical implications?)
4. Equal Protection Challenge to Peremptory Strikes (Batson)
       a. Prima facie showing of intentional discrimination or deliberate exclusion on
          the basis of a protected class
               (i) Narrower than 6th Am challenge which allows showing a pattern of
                     discrimination against any distinctive group
               (ii) Cross-section 6th Amendment challenge not applicable to selection
                     from the venire (Holland)
               (iii) White D is allowed to object to exclusion of black jurors because
                     injury is to excluded juror who is unlikely to challenge because of
                     small damage awards and D shared motivation in the outcome
                     (Powers)
               (iv) The state can object to discriminatory practices by the D (McCollum.)
       b. Party defending challenge must present a group-neutral reason (Hernandez)
               (i) For excluding women, need exceedingly persuasive justification
                     (JEB)
       c. Judge decides if party objecting has shown intentional discrimination by a
          preponderance



                                                                                          43
                              (i) Burden on challenging party
                              (ii) Divide between ethical obligation not to lie and court’s potentially
                                   finding attorney’s explanation incredible
                      d. If court finds violation, must start with a new venire
                              (i) Court may discredit where Ps proffered reason applies to
                                   otherwise0similar nonblack who is permitted to serve (Miller-El)
                              (ii) Substituting someone of the same race doesn’t vindicate excluded
                                   person’s rights; compounds the discrimination

X. Trial Rights
       A. Presence
              1. Rationale
                     a. 6th Amendment right to confrontation: does exclusion interfere with
                        opportunity to cross-examine (Stincer)
                     b. Due process right to assist counsel; could it be a constructive denial of
                        counsel?
              2. D may lose constitutional right to presence if
                     a. After warning, D continues disorderly, disruptive, disrespectful conduct and
                        there no effective less-restrictive means (Allen)
                             (i) There is nothing constitutionally impermissible in continuing the trial
                                   in D’s absence
                             (ii) Binding or gagging the D is not fair or dignified
                             (iii) Holding D in contempt not sufficient
                             (iv) If D is expelled, court should try to mitigate the disadvantage but
                                   making reasonable efforts allow attorney-client communication and
                                   keeping D apprised of the progress at trial
                     b. Court may begin a trial in D’s absence if D knew of the trial date and
                        intentionally stayed away (Jefferson v. State)
                             (i) But FRCrP 43 may prohibit trial beginning if D is absent
              3. Which proceedings?
                     a. D only has a right to be present at trial and proceedings that could interfere
                        with D’s opportunity to cross-examine a witness. Or any stage that is critical
                        to the trial’s outcome or if his presence would contribute to the fairness of the
                        procedure. (Stincer).
                             (i) Due Process and 6th Amendment confrontation right
                             (ii) No right to be present at pre-trial competency hearing of minor
                                   victims: the children later testified in open court where D had
                                   opportunity to cross
              4. Court may not use visible shackles to restrain D during trial (Deck)
                     a. Problems:
                             (i) Undermines presumption of innocence
                             (ii) Interferes with right to communicate with counsel
                             (iii) Weakens dignity of court proceedings
                     b. Use of stun belt may create other constitutional problems
                             (i) Further interferes with ability to communicate with counsel
                             (ii) Shock would be least dignified possible thing



                                                                                                          44
B. Confrontation
       1. The 6th Amendment bars the introduction of testimonial hearsay (Crawford)
               a. Testimonial:
                       (i) Prior testimony at prelim, before a grand jury or a former trial
                       (ii) Police interrogations
               b. Unless out of court statement was nontestimonial:
                       (i) Made to police during an emergency (Davis)
                       (ii) Not in anticipation of litigation
               c. D has no opportunity to cross examine and witness’s out of court statements
               d. Unless the witness is unavailable at trial and D had a prior opportunity for
                  cross-exam (Crawford)
C. Not to Testify
       1. 5th Amendment right to be free from compelled testimony
       2. Jury may not be instructed to infer and prosecutor may not argue guilt from D’s
          silence (Griffin)
               a. There are a number of reasons the D may not testify: timidity, nervousness,
                  embarrassment, prior convictions
               b. If D requests, judge must instruct jury not to infer guilt from silence (Carter)
       3. Sentencing judge is also not allowed to draw adverse inferences from silence at
          sentencing (Mitchell)
       4. Prosecutor may not comment on D’s silence
               a. Lockett: referring to evidence as unrefuted and uncontradicted does not violate
                  the constitution because it does not add anything to jury’s impression
               b. Robinson: Where D urged that he was not allowed to tell his side of the story,
                  prosecution’s response that he “could have taken the stand” was ok; not used
                  as substantive evidence, only to respond to D’s claim
       5. D has a constitutional right TO testify (Rock)
               a. One of the few areas where adverse is an affirmative right
               b. Based on due process, 6th Amendment right to compulsory process, corollary
                  to guarantee against compelled testimony
               c. State may place limits that are not arbitrary or disproportionate
               d. State may argue against D’s credibility by pointing out that he was present for
                  all other testimony (Portuondo)
D. Limits on Argument
       1. Test is whether P’s comments so infected the trial with unfairness as to make the
          resulting conviction a denial of due process (Darden v. Wainwright)
               a. Requires D to show prejudice (like all DP errors); rare case (Modica)
                       (i) If no prejudice, judge should cut off argument and forcefully instruct
                             jury to disregard
               b. Examples of improper arguments
                       (i) Personal opinion on credibility of the W
                       (ii) Personal opinion on guilt or innocence of the D
                       (iii) Should not address broader issues (impact on society)
                       (iv) Inflaming passion or pejudice
                       (v) Attacking integrity of D counsel
                       (vi) Misstating the law



                                                                                                45
                             (vii) Referring to facts outside the record
                             (viii) Referring to d’s silence
                      c. Determining if trial was unfair
                             (i) How egregious: misstatements of the law, facts outside the record
                             (ii) Responding to D’s argument? (Young)
                             (iii) Isolated episode in otherwise proper argument?
                             (iv) Whether D made timely and strong objection, indicating a fear of
                                   prejudice
                             (v) Whether judge took corrective action (instruction)
                             (vi) Whether remarks were combined with other errors
                             (vii) Overwhelming evidence of guilt
XI. Sentencing
       A. Introduction to Theories
               1. Competing ideals: individualization v. equity
               2. Rehabilitation
                      a. Concerns with disparity and arbitrary/injustice if rehabilitation is unsuccessful
                      b. Swing back towards rehab as a cost-cutting measure
               3. Deterrence
               4. Incapacitation
               5. Retribution
       B. Constraints on Sentencing Discretion
               1. Prosecutor’s Discretion
                      a. Judicial rejection of negotiated sentences
                      b. Political review
                      c. Parole release where available
                      d. Clemency
               2. Of judges
                      a. Statutory minimums (certain offense or if certain facts present)
                      b. Guidelines (which are now mandatory): base offense + offense characteristics
                         – downward departures / criminal history category
                      c. Appellate review of compliance with mandatory minimums, guidelines,
                         procedural requirements
                      d. Political review
                      e. Parole release where available
                      f. Clemency
       C. Limits on Sentencing Info
               1. Judge can consider almost anything
                      a. Information outside the record (Williams)
                              (i) But in capital cases, must disclose which portion of the PSR formed
                                   the basis for the death sentence (Garner)
                      b. Hearsay (Williams)
                      c. Other crimes and conduct for which D was not charged or convicted
                         (Williams)
                              (i) Even if D was acquitted, standard is BRD and judge need only find by
                                   preponderance
                              (ii) Goes towards culpability and likelihood of rehabilitation



                                                                                                       46
                                 d. D’s commission of perjury (Dunnigan)
                                          (i) But the judge must make an independent finding to establish willful
                                                perjury, not just confusion, mistake, or faulty memory
                                          (ii) Goes towards D’s character, respect for the law
                                          (iii) May not increase above statutory max
                                 e. Cooperation and failure to cooperate
                                          (i) Can rely on non-cooperation in refusing to name drug supplier, but
                                                cannot use refusal to cooperate as a direct inference that P’s proof was
                                                correct because D has 5th A right to silence (Mitchell)
                                 f. Victim’s views; but state may give further guidance to court (Payne)
                          2. But he may not
                                 a. Retaliate for exercise of rights (Pearce v. Blackledge)
                                 b. Consider silence (Mitchell)
                                 c. Evidence of D’s membership in Aryan Brotherhood is not relevant (violates 1st
                                     Amendment) (Dawson)
                                          (i) But a D’s anti-Semitic statements during trial were properly
                                                considered in arson of Jewish community center(Kapadia)
                                 d. D’s or V’s race or gender (McKlesky)
                                          (i) However, court has upheld hate crime statute that permits additional
                                                penalties for crimes committed with the intent to intimidate (animus
                                                towards a group is more culpable)
                  D. Rights at Sentencing
                          1. Right to be present
                          2. Right to assistance of counsel (Mempa v. Rhay)
                          3. Right to notice
                          4. Right to present evidence
                                 a. Typically up to judge’s discretion
                                 b. If allocution, D must be placed under oath in some states
                                 c. States split on whether D has right to allocution
                          5. No right to confront witnesses
                  E. Burden of Proof for Sentencing Factors
                          1. Element needed for conviction: P has burden of proving beyond reasonable doubt
Statutory Max: Jury       2. Affirmative defense at trial: D has burden by preponderance
must find any fact that   3. Facts that lead judge to impose a higher sentence within the sentencing range: P has
raises statutory max         burden by preponderance (Williams)
(Apprendi) or permits
punishment beyond what
                                 a. Judge has wide discretion to choose sentence and judge can pick any sentence
conviction alone allows              within statutory range
(Blakely)                        b. There are facts relevant to sentencing that are not relevant to guilt
- Except criminal history                 (i) Impractical to haul all PSR witnesses into court
(Almendarez-Torres)       4. Fact of prior conviction that raises sentence max: P has burden by preponderance
Statutory Range: Judge
                             (Almendarez-Torres)
has discretion within any
range available after            a. Criminal history category
conviction alone          5. Fact mandating higher minimum: P by preponderance (McMillan)
(Wiliams)                        a. Unless the fact that changes the nature of the conviction (wags the dog’s tail?)
Statutory Minimum:        6. Fact raising statutory max: Must be proven to a JURY beyond a reasonable doubt
May be raised if fact-       (Apprendi)
finding (McMillan)



                                                                                                                     47
                               a. Unless D ADMITS as part of conviction
                               b. Viewed as element of a greater offense: must also be charged in indictment
                               c. Hate crime statute that boosts max sentence upon finding that D intentionally
                                  chose V based on religion, sex, race, sexual orientation
                               d. Unresolved issues:
                                       (i) Amount of loss – each finding of loss doesn’t raise the max
                                       (ii) What counts as an admission?
                       7. Fact raising max sentence that would be authorized by conviction alone: P must prove
                          to JURY beyond a reasonable double (Blakely; Ring; Booker I)
                               a. If factfinding at sentencing exposes D to sentence greater than the statute
                                  authorizes through the guidelines, fact must be found by a jury (Blakely)
                               b. If fact must be found (aggravators) to make D eligible for capital punishment,
                                  jury must find (Ring)
                               c. Problems with Blakely
                                       (i) This holding threatens all discretionary sentencing guidelines: judges
                                            could no longer make calibrated findings of fact at sentencing and
                                            judges would either have to be given broad discretion or guidelines
                                            would have to be advisory
                                               (a) Federal system and most states responding by making
                                                   guidelines advisory (Booker II) but judge must still stay within
                                                   statutory range
                                               (b) Some states limited the number of facts that put D in a different
                                                   sentencing range and makes prosecution prove these facts at
                                                   sentencing
                                       (ii) Forces D to contest these factors during trial for guilt or innocence
                               d. Note that this holding exempts findings of prior convictions in order to
                                  preserve the criminal history category in sentencing guidelines
                                       (i) But Besser (NY) found that persistent offender statute in NY violates
                                            these cases
                       8. A fact permitting consecutive sentences for multiple offenses: P must prove by
                          preponderance (ICE)
        XII. Double Jeopardy
                A. Attachment
                       1. Bench trial: attaches when evidence is received and the government’s case begins
                          (document or first witness sworn
                       2. Jury Trial: When jury is sworn (Crist)
                               a. Jeopardy is an interest in avoiding harassment and embarrassment; having
                                  evidence presented to two juries creates double jeopardy
                               b. D’s interest in retaining the chosen jury through verdict; bound up in the idea
                                  that jury acquittal is special
                               c. No DJ bar if dismissed pre-trial or after voir dire
                       3. Guilty Plea: Once the plea is accepted by the judge
                B. Reprosecution Following Mistrial
                       1. Where D did not consent or request mistrial, DJ bars unless there was “manifest
1. Has jeopardy
attached?                 necessity” in granting mistrial
2. What was the
disposition?
a.i. Mistrial on D’s
motion – no DJ
a.ii. Mistrial on P:                                                                                              48
DJ unless manifest
necessity
b. Acquittal – DJ bar
               a. Manifest necessity exists if an impartial verdict cannot be reached or if reversal
                  is certain
                       (i) Indictment fails to state a crime (Sommerville)
                       (ii) Jury deadlock (Perez): permissible to declare a mistrial rather than
                             force continued deliberations depending on whether D objected,
                             length of the trial, length of deliberation, effort to encourage/break
                             deadlock (Allen instruction, dynamite charges)
                       (iii) Jury misconduct
                       (iv) Defense counsel’s outrageous opening statement
               b. Where delay is due to P error (failure to get witnesses), not manifest necessity
               c. No manifest necessity where judge could cure the problem
                       (i) Substitute juror or proceed with 11
                       (ii) Give instruction
                       (iii) Grant continuance
                       (iv) Make jury deliberate longer
       2. If D consents or requests mistrial, he is considered to have waived DJ protection
          (Dinitz)
               a. UNLESS D was goaded by P into moving for a mistrial (Oregon v. Kennedy)
                       (i) Goading is present if the record supports an inference that P thinks
                             trial is going badly and tried to manipulate retrial and DJ system
                       (ii) Depends on P’s intent
               b. Some states offer more protection
                       (i) California’s subset of prosecutorial conduct that will not bar retrial is
                             limited to intent
C. Reprosecution Following Acquittal
       1. Double jeopardy attaches after an acquittal
               a. State can’t appeal
               b. Goal is to prohibit affording the prosecution another opportunity to supply
                  evidence which it failed to muster the first time around (DiFrancesco)
               c. Protects the potential for jury nullification (Weston)
       2. What counts as an acquittal
               a. Jury verdict
               b. Bench trial (judicial) verdict
               c. Directed verdict before jury verdict
               d. Dismissal (at trial or on appeal) for insufficient evidence
               e. Dismissal based on failure to rebut insanity or entrapment defenses
               f. Where D convicts of lesser-included, imply acquittal of greater charge (Green)
                       (i) Unless hung jury or jury specifically notes it cannot reach agreement
                             on higher charge
       3. Unless D bribed the judge or jury (People v. Aleman, Ill.)
D. Reprosecution Following Conviction Overturned on Appeal
       1. If D appeals convictions and it is reversed for insufficient evidence of one of the
          elements, double jeopardy bars retrial (Burks)
       2. If D appeals and conviction is reversed for procedural error (anything other than
          insufficiency of the evidence), double jeopardy does not bar retrial (Ball)
               a. No matter how flagrant the prosecutor’s error



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       3. If court of appeals finds that trial judge shouldn’t have let the evidence in and without
          it there is insufficient evidence, this DOES NOT bar retrial because it is a procedural
          error (admitting evidence) (Lockhart)
       4. Where D is convicted of lesser offense, implies acquittal of greater (Green)
E. Reprosecution Following Dismissal
       1. Pre-Trial dismissal does not bar reprosecution because DJ hasn’t attached (Serfass)
       2. Dismissal based on Procedure (anything other than insufficient evidence or anything
          P can appeal) does not bar reprosecution (Ball)
               a. Insufficiency of the information/charging (Lee)
               b. Pre-indictment delay does not bar retrial because it is actually procedural
                   (Scott)
                        (i) P could appeal judge’s ruling and obtain retrial
               c. If statute of limitations has run, state can bring a new charge that includes a
                   more recent overt act (Kruelski)
               d. Improper venue: more procedural than substantive (Wilkett)
       3. Dismissal based on failure to rebut insanity or entrapment defense bars
          reprosecution (Burks; Scott)
               a. Such a finding establishes the D’s lack of criminal culpability (Russell)
       4. A dismissal for insufficiency of the evidence bars subsequent prosecution. When
          judge’s ruling represents a resolution in D’s favor on some or all of the factual
          elements of the offense charged (Sanabria; Scott)
               a. Even if the judge’s ruling to exclude evidence that leads to declaration of
                   acquittal is clearly erroneous, counts as an acquittal (Sanabria).
               b. Even if judge dismisses because he erroneously believed there was an extra
                   element in the charge, counts as an acquittal
       5. Dismissal following a jury’s guilty verdict: no DJ bar (Wilson)
               a. If P successfully appeals the dismissal, then the verdict is simply reinstated; D
                   would not be subjected to second trial
F. Following Sentencing
       1. Where judge misconstrued sentencing law and government can appeal, no DJ
          (DiFrancesco)
       2. But where jury decides not to impose the death penalty (Bullington), re-sentencing is
          barred
G. After Acquittal or Standing Conviction:
       1. Double Jeopardy: Same offenses must be joined or DJ will bar prosecution for the 2nd
          offense
               a. Does each offense have on separate element not contained in the other?
                   (Dixon-Blockburger) If one offense is a lesser-included, barred by double
                   jeopardy from bringing separate prosecutions
                        (i) Dixon: Contempt + drug crime = same offense; contempt (for drug
                             crime) and assault with intent to kill = not the same offense, intent to
                             kill is an extra element
       2. Collateral Estoppel/Issue Preclusion
               a. Distinguish from DJ: different victim means it’s not the same offense; look to
                   claim preclusion




                                                                                                   50
                      b. Acquittal for one offense will bar a later prosecution for a different offense if a
                          fact necessary for conviction of the second offense was necessarily
                          determined earlier in the D’s favor (Ashe)
                               (i) Was the fact fully-litigated?
                               (ii) Look at charges to the jury, arguments to the jury, questions by jurors
                               (iii) If D conceded all other issues, acquittal was probably based on that
                                     issue
                      c. After losing civil case, cannot seek criminal prosecution if (a) actually litigated
                          and (b) fact was reason for finding at earlier trial
                               (i) But if criminal prosecution fails, government can seek civil penalties
                                     because the burden of proof is different;
XIII.   Review of Error by Appeal
        A. Source of Defendant’s Right to Appeal
               1. No constitutional right to appeal (McKane v. Durston)
               2. But if a state provides a right to appeal, the Constitution requires state to comply with
                  DP and EP
                      a. DP: No vindictive prosecution in response to exercising right and getting relief
                          on appeal (Pearce)
                      b. EP: Must provide counsel for indigents on direct appeal (Douglas)
                      c. EP: Cannot deny appeal to indigent D (Griffin)
        B. Defendant’s Appeals
               1. Can D appeal at this time?
                      a. Final judgment rule: D can not appeal until sentence is imposed
                               (i) More efficient to resolve all at once, appeal may crate undue delay
                                     and lead to lost evidence; one of the painful obligations of citizenship
                                     is that you have to wait until final judgment to appeal (Cobbledik)
                      b. Unless there is an exception for a collateral issue
                               (i) Order conclusively determines the question (not tentative, informal,
                                     or incomplete)
                               (ii) Issue is important
                               (iii) Issues is independent of the merits
                                         (a) Wouldn’t be affected by subsequent decision on the merits
                               (iv) Normal appellate review would provide inadequate remedy
                                         (a) Review would not cure error; harm would have already
                                             occurred
                      c. Rulings on which D can seek interlocutory appeal
                               (i) Denial of bail (Stack v. Boyle): Finally resolved and independent of
                                     the issue to be tried; moot if review awaits conviction
                               (ii) Conditions of pretrial release
                               (iii) Double jeopardy: constitutional right is the right not to be retried for
                                     the offense (Abney)
                               (iv) Speech and Debate clause: right not to be questioned or tried about
                                     certain legislative activities (Helstoski)
                               (v) Motion for return of property
                               (vi) Order requiring juvenile to be tried as an adult: right would be lost
                               (vii) Sell hearing forcing D to be medicated



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                  (viii) Third party rights/ Media gag order: affects 1st Amendment rights
                        of access
          d. May not seek interlocutory appeal for
                  (i) Vindictive prosecution: Remedy is a dismissal, not a right not to be
                        tried (Hollywood Motor Cars)
                  (ii) Speedy trial violations: determination of whether a violation has
                        occurred depends on a determination of prejudice at trial
                        (MacDonald)
                  (iii) Grand jury errors: appeal involves considerations enmeshed in merits
                        of the case, even despite Mechanik rule that violations are per se
                        harmless
                  (iv) Qualification of counsel: tied up with merits of trial and prejudice
                  (v) Improper joinder
                  (vi) Improper venue: remedy is transfer back to proper venue
                  (vii) Denial of MTD due to statute of limitations: not as absolute as DJ
                  (viii) Denying D’s demand for discovery
                  (ix) Requiring D to produce discovery
                            (a) Unless D’s counsel refuses and is placed in contempt
                  (x) Courts are split regarding MTD based on violation of immunity
                        agreement: tied up with merits if there is breach, but it is largely
                        independent, unappealable because D is already harmed by trial
2.   Did D expressly waive his right to seek relief based on this error? No relief unless
     error in waiver or jurisdictional
          a. Plea agreements
          b. Stipulation
          c. On-the-record waiver
3.   Did D forfeit right by pleading guilty? Except
          a. Unless error in plea itself (ineffective, involuntary waiver)
          b. Error that can’t be cured/bar second try (vindictive charging, GJ selection
             challenges)
          c. Error expressly reserved by conditional plea agreement
4.   Did D forfeit right by failure to raise before the trial court in a timely appropriate
     manner?
          a. Unless plain error (FRCrP 52(b); Olano)
                  (i) Error: not expressly waived or waived by statute (STA)
                  (ii) Plain: obvious by time of appeal
                  (iii) Affected substantial rights: D has burden of showing that it made a
                        difference in the outcome
                  (iv) Seriously affects the fairness, integrity, or public reputation of judicial
                        proceedings: bad enough
5.   Was there error and can it be established under the relevant standard of review?
          a. Abuse of discretion where judge had discretion
                  (i) Evidentiary
                  (ii) Sanctions for discovery abuse
                  (iii) Challenges for cause
          b. Clearly erroneous: findings of fact



                                                                                               52
               (i) Whether prosecutor intended to use race as basis for peremptory
                     (Batson)
               (ii) Whether client was advised on max sentence before plea
       c. De novo: Mixed questions of law and fact
               (i) Strickland: whether counsel was reasonable
               (ii) Dangerousness at bail hearing
               (iii) Manifest necessity for mistrial
6. Assuming error not waived or forfeited, relief?
       a. Double jeopardy, vindictive charging, and Speedy Trial constitutional error:
          remedy is barring reprosecution
       b. Where D must show prejudice to establish error itself, no need for harmless
          error analysis:
               (i) Brady: requires showing of reasonable probability that failure to
                     disclose affected the outcome
               (ii) Darden: Improper argument
               (iii) Strickland: Ineffective assistance of counsel
               (iv) Youngblood: Improper destruction of evidence
       c. Structural errors: Impacts framework of trial and affects basic protections,
          without which, trial is fundamentally unfair; automatic reversals (Fulminante;
          Rose)
               (i) Improper exclusion of capital punishment juror because of views on
                     DP (Gray)
               (ii) Racial discrimination in selection of grand jurors (Rose)
               (iii) Batson errors
               (iv) Denial of public trial (Waller)
               (v) Defective BRD instruction (Sullivan)
               (vi) Denial of self-representation (McKaskle)
               (vii) Biased judge (Tumey v. Ohio)
               (viii) Denial of counsel (Gideon)
               (ix) Improper withdrawal of appointed counsel (Penson)
               (x) Counsel of one’s choice (Gonzales-Lopez
               (xi) Conflicts where constitution mandates an inquiry (Holloway)
               (xii) Denial of right to consult with counsel during overnight recess
                     (Geders)
       d. Constitutional errors: P must show beyond a reasonable doubt that the
          constitutional error was harmless (Chapman)
               (i) Admission of co-D statement in violation of confrontation could be
                     harmless
               (ii) Griffin violation could be harmless
               (iii) Introduction of coerced confession could be harmless (Fulminante)
               (iv) Denial of counsel at PH can be harmless (Coleman)
               (v) Improper instruction on one element of the offense violates Sixth
                     Amendment jury trial guarantee, but can be harmless (Neder)
                        (a) Where the government does not produce evidence to dispute the
                            element = harmless error




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                     e. Statutory errors are subject to harmless error analysis: Government must show
                        error had no substantial effect on the verdict (Substantial effect is lower than
                        BRD)
     C. Government’s Right to Appeal
            1. No constitutional right to appeal
            2. Federal system and most states allow prosecution appeal
                     a. Criminal Appeals Act of 1970: May appeal from decision, judgment, or order
                        dismissing indictment or information or granting new trial after verdict or
                        judgment except where appeal would violate Double Jeopardy clause
            3. Prosecutor may have more opportunities for interlocutory appeal because this is their
                only chance
                     a. Examples of interlocutory
                             (i) Motion to suppress: if USAO certifies that appeal is not taken for
                                  purpose of delay and exclusion relates to a substantial fact of the case,
                                  P may appeal pre-trial
                             (ii) Midtrial order directing government witness to respond to defense
                                  questions on matter claimed to be privileged: witness would have to
                                  refuse and court would hold witness in contempt so witness can
                                  appeal contempt order
                     b. Rulings relating to sentences: P can always appeal sentences and rulings
                        related to sentences (don’t have to do with acquittal) so no need for special
                        right to appeal
XIV. Habeas Corpus
     A. Basic Contours
            1. Can only address federal claims, claiming that court violated federal law
                     a. Cannot examine validity of state court rulings on state law
            2. Source of the right
                     a. Suspension Clause, Art. I: Congress can’t suspend right to habeas relief except
                        in cases of rebellion or invasion
                             (i) After 14th Amendment, this may provide constitutional right to federal
                                  review of state criminal cases
                     b. 28 U.S.C. 2241: prior to conviction (deportation, pre-trial detention)
                     c. 28 U.S.C. 2254: Custody pursuant to state criminal conviction
            3. Civil cases: apply rules of civil procedure
            4. No right to counsel
     B. Judicial Restrictions
            1. No relief on 4th Amendment claims (Stone v. Powell)
            2. No enforcement of “new” rules declared after D’s appeal is final (Teague v. Lane)
            3. State procedural default bars federal habeas claims (Sykes): If you didn’t raise a claim
                in accordance with state procedure, D is barred from habeas review unless D can
                show:
                     a. Cause and Prejudice (Sykes)
                             (i) Cause for failure
                                     (a) Ineffective assistance of counsel during a proceeding where D
                                         had constitutional right to counsel (Coleman v. Thompson




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                                           Petitioner must have complied with state procedure for
                                            raising the IAC claim (Edwards)
                               (b) State interference: Brady; Amadeo v. Zant: DA’s office covered
                                   up earlier Brady violation
                       (ii) Prejudice from that failure
                               (a) IAC and Brady already involve showing of prejudice, which
                                   also satisfies this prong
               b. Miscarriage of Justice (House v. Bell): more likely than not that no reasonable
                  juror would have convicted in light of the new evidence
                       (i) But open question whether error-free trial that resulted in conviction
                            would be overturnable on habeas
C. Statutory Limitations
       1. 1 year statute of limitations, tolled by properly filed state post-convictions proceeding
       2. Claims must be exhausted and federal court may deny on the merits and dismiss with
          prejudice
       3. Limited evidentiary hearings when facts were not developed in state court
       4. Bars successive petitions except in limited circumstances
       5. Deferential standard of review
       6. Fast-track deadlines for capital cases (but no state has come up with a qualifying
          representation plan)
D. Evaluating Merits of State Court Decision
       1. Contrary to
               a. confronts indistinguishable set of facts and comes to a different result
       2. OR Unreasonable Application of
               a. correct legal rule but unreasonably applied to facts or unreasonably extends or
                  narrows (Terry Williams)




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