Sunday, April 1, 2012

Criminal Law Outline (2)

Criminal Law Outline (2)

Arrest
-bring to police dept, mug shot, fingerprinting, blood sample (sometimes)

Initial Appearance/arraignment
-coming into court
-must file a complaint by police, which is the charge
-indigent def can have ct appointed atty
-def enters a plea G or NG
-bail hearing, def’s atty has chance to prepare for hearing
-atty tells other args (ie search and seizure) may influence the amt of bail
-issue of def’s competency, have def examined
-enroll def in drug rehab
-special facts of case (preserving evidence etc)

MISD.
Pre Trial Conference
-chance to resolve case, ie plea bargain
-attys discuss discovery issues, motions

Pre Trial Hearing
-pretrial motions

Trial
Post Conviction
Sentencing
Appeal
Post conviction motion for collateral relief

FELONY
Preliminary Hearing
-dist ct has temporary jurisdiction over felony cases

Grand Jury Indictment
Initial Appearance
Pre Trial Conference
Pre Trial Hearing
Trial
Post Conviction
Sentencing
Appeal
Post conviction motion for collateral relief




INITIAL APPEARANCE AND DETENTION
Fed Rules of Crim Procedure RULE 5
(a) officer making arrest w/warrant or any person making arrest w/o warrant shall take arrested person without unnecessary delay before the nearest available federal magistrate judge OR if unavailable, a local judicial officer. If arrested w/o warrant, a complaint satisfying the probable cause requirements of RULE 4(a) shall be filed.
(c) If NOT triable by US Magistrate, def doesn’t have to plead. Magistrate shall inform defendant: (1) of complaint, (2) of his right to retain counsel or have it appointed, (3) general circumstances of pretrial release, (4) that he’s not required to make a statement, (5) and any statements may be used against him, (6) of the right to a preliminary hearing. US Mag shall allow reasonable time and opportunity to consult w/counsel and shall detain or conditionally release def as provided in statute or these rules.
Def is entitled to prelim hg, unless waived, for all offenses other than petty ones, which is tried by district ct judge. Mag shall set date w/in reas time, not more than 10 days after the initial appearance if def is in custody and not more than 20 days if def is not in custody. (time limits can be extended upon consent of def, or upon showing of extraordinary circumstances)


Gerstein v Pugh Sup Ct (1975)
ISSUE: whether person arrested by prosecutor’s information is constitutionally entitled to judicial determination of probable cause before pretrial restraint of liberty
HOLDING: YES. 4A requires determination of probable cause as condition for any significant pretrial restraint on liberty, made before or promptly after arrest.
--std for arrest is probable cause “sufficient to warrant a prudent man in believing that the [suspect] had committed or was committing an offense”
-4A requires that probable cause be determined by a neutral 3d party (magistrate)—thus can use SAME STD, but it’s determined by a detached neutral party before prolonged restraint
-BUT, it’s not a critical stage
-do NOT need adversary hearing (but states can have one if they want)

**How to define before or promptly after arrest?
County of Riverside v McLaughlin S Ct (1991)
-need judicial determination of probable cause w/in approx. 48hrs

**Remedy for violating? keep out certain evidence? release defendant?

BAIL

THUS, w/in 48 hrs Mag/Judge must make independent review of probable cause AND has to set fluid bail. If want to ask for NO BAIL, have to have Salerno hearing.

ARREST---GERSTEIN/PROB CAUSE & FLUID BAIL---INIT HG/APPCE—FINAL BAIL

-sole legitimate function of bail is to ensure defendant’s presence at trial
-Stack v Boyle how to calculate bail (when to know if it’s excessive)—nature and circumstances of charge, weight of evidence, financial ability of defendant, character of defendant
-pretrial detention:
-affects indigent defendants more
-less able to assist counsel in preparing defense
-less able to make amends w/victims
-loss of employment/community contacts
-increases risk of defendant being convicted and more severe sentence
-bondsmen:
-controlling the bail system by deciding whom to finance
bail conditions—things that D must do as a pre-req for bail [stay away, stay in job/school, keep in house]
timeframe—entitled to bail w/in 48 hrs unless falls w/in exception
immutable—once bail is set, it can’t be changed unless change in circumstances


Schilb v Kuebel S Ct (1971)
-challenged bail system in IL, where if defendant chooses to execute bail bond w/court (ie only pay 10% of bail) is charged a 1% fee in the end whereas if defendant posts entire bail, no charge
-ct held, no EP violation b/c wealth not a protected class and thus look at it w/rational basis—yes, rat’l basis b/c there are more admin costs w/bail bonds

PRE-TRIAL DETENTION
States:
-vary, but usually require consideration of likelihood that defendant will commit additional offense (dangerousness)
Federal:
Bail Reform Act of 1984
-balance liberty v societal safety
-imposed only after a detention hearing in front of US Mag
-when held
-crime of violence
-max sentence is life imprisonment/death
-max sentence >10 yrs and is Controlled Substance or use of firearm during felony
-serious risk that person will flee
-serious risk that person will obstruct justice
-procedure at hearing
-right to counsel
-opp to testify
-present witnesses
-cross-exam witnesses
-proffer information
-prosecution must present clear and convincing evidence that defendant won’t appear or that defendant poses a societal threat
-making decision
-nature and circumstances of offense
-weight of evidence against D
-history/characteristics of D incl:
-character, phys/mental condition, employment, financial resources, past conduct, crim history, record of appearance at court proceedings
-whether at time of alleged offense D was on probation/parole
-nature and seriousness of danger to any person or community posed by D’s release
-presumptions
-rebuttable presumption in favor of detention if:
-convicted of a prior violent crime
-while on release pending trial
-w/in the last 5 yrs
-OR
-probable cause that D committed drug or firearm/felony offense
-terms of order
-include written findings of fact
-give D separate place in corrections facility
-allow D reasonable opportunity to meet w/atty (ie released for this)
-review
-can file for review, appellate review also available

5A DP right to be held w/bail EXCEPTIONS
-default warrant, someone who has failed to appear in court
-escape charge
-charged w/capital offense/life sentence
-intimidation of a witness
-post-conviction held until sentencing
-war & insurrection
-immigration violations

US v Salerno Sup Ct (1987)
-ISSUE: does part of Bail Reform Act that allows for pretrial detention violate DP or 8A?
-HOLDING: NO violation
-D args violates subst DP b/c punishes before trial
-state args—detention wasn’t punishment, mere regulation
-ct holds in certain instances, gov interest can outweigh indiv liberty interests
-no proc DP violation b/c of full blown adversarial hearing, sufficient procedures
-D args this violates 8A b/c it forbids excessive bail
-ct holds NO RIGHT TO BAIL, but where it is granted, can’t be excessive (Stack v Boyle)
-BUT, requires discretion, can’t have automatic finding of no bail. must look at circumstances of D and have hearing to determine dangerousness

Hunt v Roth—Sup ct struck down state statute that didn’t allow for discretion and required no bail for certain offenses. MUST allow for discretion in determining pretrial detention. Also, held that 8A applies to states.

DISCRETION TO PROSECUTE
--DA has broad discretion, whether to charge, how many charges, how serious the charges
--factors to consider:
-strength of evidence
-suspect’s background and characteristics
-cost/benefit of conviction
-community attitudes
-type/seriousness of crime
-pretrial suspension—suspend charges for certain time period on condition that D complete certain program. After time period, charges dropped.
-pretrial diversions—incl pretrial suspension, where D does something other than go to trial. Helps avoid stigma of prison, decrease recidivism rates, decreases caseload BUT EP issues may arise b/c diversion opportunities may only be available in urban areas

LIMITS: preliminary examination and GJ assure that there is sufficient evidence to bring charges.

Peek v Mitchell
-private citizens do NOT have standing to force prosecutor to prosecute
-separation of powers prevented ct from interfering w/prosecutor’s duty
-state officials immune even from injunctive sanctions w/o arbitrary/discriminatory actions

Wayte v US Sup Ct (1985)
-alleged selective prosecution b/c of passive enforcement policy—prosecutes only those who self-report or are reported by others
-PFC for selective prosecution: (1) other similarly situated persons not prosecuted, (2) discriminatory selection based on impermissible grounds such as race, religion, 1stA
-ct didn’t find discriminatory purpose (only effect)
-ct also found no 1st A violation b/c sufficiently compelling gov interest (prosecutorial efficiency, deterrence)

FELONY v MISDEMEANOR—no EP violation based on prosecutor’s discretion by charging same offense as felony or misdemeanor
PRETRIAL DIVERSION—not subject to judicial review. BUT termination of pretrial diversion IS subject to review b/c it’s a contract and court can decide who did/didn’t live up to terms of K.

Preliminary Examination & Grand Jury

-Prelim Exam—often held in lower ct that lacks jurisdiction to try case on its merits. Intent, to determine probable cause to believe D guilty. Screening function. Justify charge & justify restraint. Serves other functions: give D discovery, opportunity to probe state witnesses, preserve evidence, preserve testimony, impeach witnesses at trial, review pretrial release issues, encourage plea negotiations.

WHY PRELIM and not GJ?
Prosec: -see whether or not reluctant witnesses will show up
-perpetuate testimony to be used to impeach
-test of the witness’ testimonial capacities
Defense: -discovery
-screening process
-perpetuate testimony

Constitutional Req.
-GJ for crimes w/prison 1+yrs
[Hurtado v CA, this doesn’t apply to states. No state req. of GJ OR prelim. exam]
-no const. req. for prelim exam

FED RULE 5.1
If probable cause to believe that offense has been committed and that D committed it, shall hold D to answer in dist ct. Can use hearsay ev. D can cross exam adverse witnesses and introduce evidence. Don’t make objections on unlawful acquisition of evidence at this time. Do make motions to suppress.

Coleman v ALS Ct (1970)
-HOLDING If AL chooses to have a hg, then it must prove atty b/c it’s a critical stage b/c potential to inflict injury on D at trial.
-Atty is necessary to expose weaknesses in state’s case, impeachment, prepare proper defense, prelim matters such as bail.

Meyers v Commonwealth SJC of MA (1973) holdings re: state law
-ISSUE: does GL 211 Sect 3 give Ds a to cross-examine witnesses?
-HELD: YES. MA Stat gives an adversary hearing
-The std is probable cause to send to jury (ie bind over) NOT prob cause to arrest (using evidence that is admissible at trial, unlike arrest prob cause)
-state is afraid that these stds will turn hg into full blown trial
-ct responds that trial strategy will encourage attys to withhold info at hg

Grand Jury
-constitutional right to GJ in fed ct for felonies
-23 people on jury, must be at least 12 who vote for prob cause
-amending indictment: US v Miller can’t add new allegations to indictment; can’t be convicted by evidence proving things not in indictment, but CAN be convicted for an offense in allegation using fewer facts than found in indictment

Costello v US S Ct (1956)
-ISSUE: does lack of witnesses (and use of hearsay) at GJ violate 5A?
-HOLDING: NO. No requirement of live witnesses, not hindered by evidence rules
-ct looked at history of GJ—ct has refused in past to quash GJ indictment even when almost all evidence was found to be incompetent (b/c then there would have to be a mini-trial on the adequacy of the GJ indictment, and it would be a cycle of trials)

Hearsay—disagreement among circuits—9C allows invalidation of indictment if use perjured testimony; 2C allows leeway, but makes prosecutor disclose if it’s hearsay
Illegally Obtained EvidenceUS v Calandra-S. Ct. held that in deciding whether or not to admit illegally obtained ev, weigh injury to role of GJ w/benefits of allowing exclusions in this case (also unlikely to deter police violations of 4A)
judicial review—some states have judicial review of indictment for sufficient evidence for probable cause
exculpatory evidenceUS v Williams—S Ct struck down a statute that required prosecutor to present exculpatory evidence to GJ. No legal duty to present evidence, BUT if failure to present it would be misleading to GJ, ct may require it to be presented.
Why SHOULD discloses:
-fairness, b/c this D will have to be held until trial if G by GJ
-accuracy, more likely to get truth
-efficiency/economy—trials are expensive, and if GJ would acquit, save $
Why SHOULDN’T disclose:
-hard to define exculpatory evidence
-hard to limit what IS exculpatory
-who has responsibility for presenting it?
-function of GJ is to accuse, not judge
-this involves ct more, and want to give GJ freedom/leeway
record—Rule 6(e)(1) requires recording all proceedings, except deliberations

DISCOVERY AND DISCLOSURE
TYPES OF DISCOVERY:
--Notice—D telling Pros of use of certain defenses [alibi, mental health, self defense] or Pros telling D of means of obtaining certain evidence, ie wiretapping.
--Information—copies of records, reports, photos
--Procedures—D having to submit to handwriting samples, line-ups, etc

DUTY TO DISCLOSE
-varies, party may have duty to provide discovery w/o a request or maybe depends upon request
-sometimes ct examines evidence in camera
-sometimes parties can excise part of the documents
-can petition court if believe that shouldn’t have to provide all the discovery requested
-Fed Rules Crim 16(c)—duty to disclose is continuing duty, if new evidence comes to light later, have to provide it
-exception for work product, result of legal research containing opinions, theories, conclusions
-sanctions—ct can sanction prosecution by dismissing charges, and sanction D by not allowing witness for D to testify
-information subject to disclosure by the Pros Fed Rules Crim 16(a)—statements of D; D’s prior record; documents/tangible objects “material to the preparation of his defense”; reports, examinations, tests; expert witnesses

DISCLOSURE BY PROSECUTION

US v Bagley S Ct (1985)
-D brought post-conviction case b/c learned that 2 prosec witnesses had signed contracts and received $ for information, D args that not having this info affected his ability to cross-exam
-Brady v MD-suppression by pros of ev favorable to accused upon request violates DP where ev is material to guilt or punishment
-S Ct HELD that Brady only requires disclosure of ev favorable to accused that would affect right to fair trial (and would undermine confidence in outcome of trial)
-doesn’t differentiate betw impeachment and exculp evidence
-difference betw no request, general request, and specific request for information
-here, was specific request for info, D args should be stricter std
-ct HOLDS, need to look at all the circumstances: adverse effect on presentation/preparation of D’s case (this includes how much D relied on request, ie specific or not)
DISSENT—majority applied Agurs rule, which involved general or no request, whereas here there was a specific request and should apply Brady rule, which would set aside conviction if “any reasonable likelihood” that suppressed evidence would have affected outcome

duty to preserve evidence?—std is good faith. If failure to preserve evidence was done in good faith, OK. [in MA, std is negligence. looks at whether evidence is exculpatory and what way there is to make it up to D]
timetable—can disclose information to D at trial. Std is whether info. cam too late to afford D a fair trial
materialityKyles v Whitley—std is whether there is a reasonable probability of a different result, and if in absence of info, D had a fair trial. Look at materiality on collective basis, all the circumstances/facts. Once ct has found Bagley error, it cannot be harmless error. Pros had burden of knowing who on its side has favorable evidence and to make disclosure when “reasonable probability” std is reached.

People v Bassett Sup Ct of IL (1974)
ISSUE—D’s access to prior statements of prosec. witnesses
-FACTS: prison riot where 3 guards were killed, Ds convicted of murder
-want to access the yellow pad or white card notes from pros interviews w/inmates
-D has to argue: (1) that statements exist, (2) that D was entitled to access statements, and (3) that statements were exculpatory (is this part necessary??)
-ct ordered that parts of white cards that could be fairly said to be witness’ statements were to be turned over to D

Rule 412 (supreme ct rules)—D has right to written and recorded statements of witnesses that are substantially verbatim reports of statements
Jencks Rule—right of D to receive pros witness’ statements after the witness has testified (Fed Rules Crim 26.2)
police reports—may be subject to discovery, but only if quote directly from persons interviewed

DISCLOSURE BY DEFENSE
-Fed Rules Crim 16(a)—defendant’s duty to disclose is conditioned on his exercise of his right to discovery against prosecution
-S Ct HELD, 5A doesn’t entitle D to wait until end of state’s case to announce notify pros of his defenses
-S Ct struck down Oregon statute that didn’t require reciprocity (ie required D to disclose alibi witnesses, but didn’t require state to disclose counter-alibi witnesses)
-S Ct struck down Tennessee statute that required D to testify first

US v Nobles S Ct (1975)
-ISSUE—can court compel D to disclose relevant portions of an investigator’s report for pros. to use in cross-exam?—YES
-ct HELD disclosure doesn’t violate 5A, b/c 5A doesn’t extend to 3d parties
-ct also HELD that it’s OK to sanction D for failure to comply w/discovery by not allowing certain witnesses to testify (doesn’t offend 6A)

PRETRIAL HEARINGS
-before judge, not Mag?
-before trial, outside presence of jury
-want certain motions heard pre-trial b/c aids in preparing for trial, impeaching witnesses
-fed const. right to have certain things decided outside presence of jury (but, this doesn’t require it to be pre-trial)
-pre-trial, more convenient administratively, and reduces time waste during trial, encourages settlement
-what to raise: in many jurisdictions, Ds have to raise certain things before trial: defects in prosecution, defects in charging instrument, discovery requests, testimony suppression requests, joinder, dismissal, severance, transfer requests. Pros has to notify D of intent to use certain types of evidence.
-determination of issues: matters raised before trial are to be resolved on merits before trial, unless impractical.
-appeal: in some circumstances, pros can appeal adverse pretrial outcome (b/c would be barred after trial b/c of double jeopardy), but D usually cannot appeal b/c an appeal after conviction.

Watkins v Sowders S Ct (1981)
ISSUE: Does the state have to conduct a hearing outside the presence of the jury when the D contests a witness identification?—NO
-looked at precedent, Jackson v Denno may be interpreted as a per se right to hg outside of jury re: voluntariness of D’s confession—but ct distinguishes this from present case b/c there is a public policy concern there, whereas here the main concern is reliability
-D args that jury presence would impede his atty’s cross-exam of the eye witness
-ct says that’s too bad
DISSENT, should apply Jackson std here, b/c it’s hard for juries to disregard confessions or eye witness Ids

mag/judge relations—it’s OK if the dist ct judge accepts the mag judge’s findings of fact and recommendations on motions (judge doesn’t have to conduct de novo hg)
rules of evidence—they don’t apply in certain pretrial hearings
burden of proof—varies depending on issue of hg
admiss in trial of pretrial testimony—if D testifies at pretrial hg, can’t use that test in gov’s case in chief [but, could use to impeach]
humane practice rule—even if judge rules that D’s confession is admissible as matter of law, jury can dismiss it as a matter of fact

SPEEDY TRIAL
-const right to speedy trial in 6A, made applicable to states by 14A

Barker v Wingo S Ct (1972)
-took almost 6yrs to try D accused of double murder
-4 factors used to determine if speedy trial was denied on case by case basis
1. length of delay
2. reason for delay
3. D assertion of right/objection
4. prejudice to D [prevent oppressive pretrial incarceration, minimize anxiety of D, minimize possibility of defense being impaired]
-examine impact of delay on all: D, prosec, victims, society
-remedy for speedy trial violation is dismissal of indictment
-ct refused to specify a specific timetable, but allows states to do so

time clock starts—begin calculating speedy trial length after indictment/arrest
prejudice—ct found violation of speedy trial even when D couldn’t show any prejudice and couldn’t show any wrongdoing by gov Doggett v US
other crimes—can have speedy trial even if D is incarcerated for another offense during wait

Federal Speedy Trial Act—must have indictment/information w/in 30 days of arrest; must have trial w/in 30/70 days from indictment/information. Failure to comply results in dismissal. Can dismiss w/ or w/o prejudice, meaning cannot/can re-indict.

US v Taylor S Ct (1988)
-ISSUE—scope of dist ct’s power to decide betw w/ and w/o prejudice
-when deciding w/ or w/o prejudice, examine:
1. facts of case [did gov act in bad faith, pattern of neglect by US atty, contributing fault of D in delay, length of delay, prejudice to D]
2. seriousness of offense
3. impact of reprosecution on justice

COMPETENCY TO STAND TRIAL
-Dusky v US—competency = ability to consult w/atty w/rational understanding, and rational & factual understanding of proceedings against him

-Godinez v Moran—Sup Ct HELD it’s the same std for competency whether determining if D can stand trial, or waive right to atty, or plead G

Pate v Robinson Sup Ct (1966)
-ISSUE—what to examine when deciding if D is competent, and how long to hold incompetent D?
-Illinois court claims that D waived right to competency hearing b/c failed to request one.
-ct finds that D didn’t request hg, but made competence an issue by raising an insanity defense
-ct holds that judge has DP requirement to call for competency hearing
-need to examine the circumstances of the crime and post-crime to determine competency
-remedy—dismissal or new trial. can’t have hearing to determine retrospective competency


-psychiatric exams D can be forced to comply w/psych exam if D uses insanity defense or mental health claim/defense
-BUT, criminal D who doesn’t request exam or seek to introduce psych evidence CANNOT be forced to answer psych questions if statements can be used against him in capital sentencing proceedings
-states must notify D’s atty when psych interview may be used in sentencing stage
-burden of proof—Sup ct allowed CA law that presumed competence and forced D to prove incompetence (Medina v CA)
-BUT, in Cooper v OK ct held that could only require D to prove incompetence by preponderance of the evidence

Jackson v Indiana Sup Ct (1972)
-D had mental capacity of pre-school child and was charged w/two petty thefts
-held competency hg and determined that D was incompetent to stand trial and was committed until he was sane
-EP claim—b/c treats incarcerated differently than other citizens w/civil commitments
-ct finds violation b/c criminal commitment statutes has lower std of proof (no requirement of dangerousness) and different circumstances for release (likely to be held indefinitely b/c no hope of improvement)
-DP claim—ct explains reasonableness rule—can’t be held for longer than a reasonable time to determine competency—THEN state can either instigate civil commitment proceedings or release D

initial appearance/prelim hg—okay to hold it even if D may be incompetent. After determine that there is probable guilt, then ct can proceed w/insanity hg or discharge D.
medicationRiggins v Nevada—D args that forced anti-psychotic meds would infringe upon his freedom and interfere w/his ability to present insanity defense. After D moves to terminate meds, state must prove (1) need for meds, (2) medical appropriateness of meds.

IMPARTIAL TRIAL
-change of venue
-change of trial judge
-pre-trial publicity
-trial publicity
-exclusion of public/press (treated same)

PUBLIC TRIALS
-presumption of trials to be open to public (civil & criminal)
-violates 1stA to close trial
-in order to close trial, have to have overriding compelling state interest—done in a manner that judge has examined all other possibilities and has limited closure to bare minimum, and judge has to make written findings of fact re: decision.
-after determine there is evidence to support some closure, determine HOW MUCH:
-maybe don’t film/photograph victims
-no public use of names of victims
-alter voices
-can’t use parents’ names, address, schools, etc
-wants to keep check on participants
-6A right to confrontation includes confronting witnesses/accuser in public
-Waller—right to have suppression hgs in public, also
-press-Enterprise co. v Superior Ct—prelim hgs are also open. If want to close, must show (1)substantial probability that D’s right to fair trial will be prejudiced, and (2) reasonable alternatives aren’t adequate
jury selection—presumption of openness extends to jury selection, but may be able to excise certain parts of transcript to protect anonymity of jurors
gag orders—where the ct allows the press access to info, but limits its dissemination. They have a presumption of invalidity, but are OK sometimes if shown to be necessary.
cameras—no 1stA right to cameras in ctroom, no cameras/audio in fed cts

juror bias—to prove allegations of unfair trial, have to show actual bias of juror
judge bias—DP violation when don’t have neutral and detached judge the first time (doesn’t matter if have right to new trial de novo)
--contempt proceedings—during these, may need new judge to preside when old judge is wrapped up in controversy



Murphy v Florida Sup Ct (1975)
-ISSUE: DP violation b/c jurors learned from news of D’s prior felony conviction?—NO
-constitutional std—panel of impartial jurors (can’t require that they have no preconceived notion of G or NG, can only require that they put this aside)
-D has burden of proving that jurors’ opinions will cause impartiality
-BUT, lack of impartiality of jurors may not need to be proven IF there is a sufficiently inflammatory atmosphere in courtroom

JOINDER AND SEVERANCE OF CHARGES/DEFENDANTS
-two-step process—initial decision whether or not to join, and later decision by trial court, assuming joinder was legal, whether charges/defendants should be severed.

Fed Rules Crim Pro 8
JOINDER OF OFFENSES:
-same or similar character OR
-same act or transaction OR
-acts/transactions that are part of common scheme/plan.
JOINDER OF DEFENDANTS
-participated in same act/transaction or series
-can be charged on some charges together and some separately

Fed Rules Crim Pro 14
-authorizes trial ct to sever offenses/defendants if there is prejudice to D or gov

D atty brings in motion to sever after discovery (should tell judge at pre-trial conference that he will bring a motion to sever after discovery)
--args that there is greater publicity w/huge trial
--trial will be LONG
--hard to find an impartial and fair jury

Prosec. args for joint trial
--modus operandi/signature crime—need to show ev of pattern and common scheme
--all evidence is going to come in anyway, so no judicial efficiency
--fundamental fairness to victims, shouldn’t have to testify in multiple trials

US v Foutz 4thC App Ct (1976)
-D was convicted of two robberies that occurred 2.5 months apart and args that failure to sever under rule 14 was abuse of discretion (CT agreed)
-joined charges only b/c were similar
-potential sources of prejudice: (1) jury may confuse and cumulate the evidence and use it where it shouldn’t, (2) D may be thwarted from exercising certain rights b/c doesn’t want to do it for both charges, ie 5A for some but not all, (3) jury may find G of one and then of other, too, b/c of criminal tendency
-where evidence of other crime WOULD be admissible in this trial, no prejudicial to try them together (not case, here)
-gov args that they need to be together b/c of signature crime (ct says NO)
-ct said limiting instructs were not sufficient

misjoinder—if appellate ct finds misjoinder, only reverse if it resulted in actual prejudice

JOINDER OF DEFENDANTS

Schaffer v US Sup Ct (1960)
-should trial judge have severed trials?—NO
-proof was carefully compartmentalized w/limiting instructs, too
-BUT, trial judge has continuing duty to grant severance if prejudice appears

antagonistic defensesZafiro v US—sup ct has preference for joint trials of Ds indicted together, even if present mutually exclusive antagonistic defenses.
accusatory defensesBruton—admitting co-D testimony in joint trial violates other co-D’s right to confrontation if it accuses him and he’s not avail to cross-exam

GUILTY PLEAS
nolo contendere—can’t use as admission of guilt in civil trial

ENTERING PLEA
-colloquy, judge must tell D certain things, make sure s/he understands
-competence to plead G (effects from meds, alcohol, mental/phys condition)
-inquire as to plea bargain and what/if any promises were made
-make findings of fact re: voluntariness
-formal record of proceedings
-substance of plea—must be intentional relinquishment of right, must have understanding of law in relation to specific facts [in MA, ct doesn’t have to explain all the elements of crime, but in Henderson ct found that intent in 2d degree murder was critical. Three ways in which judge in MA can survive Henderson: (1) judge explains elements of crime; (2) judge confirms that atty explained elements, (3) can infer that D understood elements from factual presentation]
-factual basis—Fed Crim 11, require trial judge to find factual basis for plea, not necessarily limited to admissible evidence
-explain rights—right to jury trial, to take stand, to confront witnesses, 5A privilege
-rights given up—give up right to remain silent, have to answer questions
-immigration—in MA have to explain in certain immigration cases that if plead and not a citizen, will be deported
-other consequences—such as sexually dangerous persons statute
-sentence—minimum and maximum sentence

Boykin v Alabama S Ct (1969)
-D wanted to plead G and the judge didn’t ask D any questions regarding plea and D never addressed ct
-ct HELD that can’t infer waiver of right by silence alone, must establish that waiver was intelligent and w/understanding

absence of a record of plea—w/out affirmative evidence of gov misconduct, D has burden of showing noncompliance
withdrawal of plea—difficult, presume a G plea is valid, if not, gov has to justify non-compliance w/rule 11. D can argue that plea wasn’t knowing, voluntary, intelligent, etc.
fear of punishment—D fear of punishment isn’t enough, unless can show that it erased ability to be rational

RULE 11—Pleas
(c) before accepting plea of G, ct must address D personally in open court and inform D and make sure that D understands:
1. nature of charge to which plea is offered, the mandatory min and max penalty
2. if D isn’t represented by counsel, right to counsel
3. that D has right to plead NG, right to jury w/counsel, right to confront and cross-exam witnesses, and right against self-incrimination
4. if G plea is accepted, no further trial (waiving right)
5. if ct intends to question D under oath w/counsel that this testimony can be used later against D in prosecution for perjury
6. terms of agreement that waive right to appeal or collaterally attack
(d) ct shall not accept G plea until it determines that the plea is voluntary
(e) plea bargaining
1. in return for G plea, atty for gov can make agreement w/D or his atty to:
a. move for dismissal of other charges
b. recommend or agree not to oppose the D’s request for particular sentence
c. agree that a specific sentence or range is appropriate
Ct shall NOT participate in these discussions.
2. Parties must present agreement in open ct, and ct may accept or reject it.
6. evidence of the following is NOT admissible in civil or crim proceeding:
a. plea of G later withdrawn
b. plea of nolo
c. statement made in any proceedings under this rule regarding (a) or (b)
d. statement made in course of plea discussions which don’t result in G plea
(f) even if ct accepts G plea, must make an inquiry to satisfy that there is a factual basis for the plea
(g) must be record of proceedings

Blackledge v Perry S Ct (1974)
-D was charged of misdemeanor and convicted in lower ct—exercised right to appeal and trial de novo, prosec got new indictment for felony
-anytime the sentence/charge is increased after D exercises stat right, creates presumption of vindictiveness
-but problem is that D plead G, gave up rights
-ct said doesn’t matter, b/c D is not pleading antecedent const. violations, D is asserting the right not to be haled into court at all for felony

Menna v New York S Ct (1975)
-double jeopardy, D plead G even though he simultaneously claimed double jeopardy
-State sup ct held that G plea waived any rights to claim double jeop.
-sup ct held that where ct had no right to bring D into ct, can’t waive this

PLEA BARGAINS
--ABA sentencing guidelines
OLD ONES—allowed pros. to consider lesser charge/sentence for D that plead G b/c aided in application of correctional procedures to him, and aided in disposition of all cases
NEW ONES—G plea is NOT a mitigating factor in sentencing. Instead, consider:
-is D contrite?
-will this make alternative measures avail which will help further goals of crim justice system (deterrence, protection) OR will prevent undue harm to D?
-did D demonstrate genuine concern for victims?
-has D cooperated

misunderstanding the deal—difference betw. specific assurances, and general opinion based on experience (the former may be reason for D to withdraw G plea, latter, NO)


Brady v US S Ct (1970)—coercion of G plea
-when D learned that his co-D would plead G, decided to plead G
-sentencing statute allowed only jury to impose death sentence
-D args that Jackson’s invalidation of similar statutory provision means that all who plead G w/this provision should be invalidated b/c of inevitable effect of death penalty
-ct HELD state can’t coerce or threaten to achieve G plea, BUT can influence or encourage
-ct found that knowledge of co-D’s plea influenced decision, and statute wasn’t coerced

McMann v Richardson & Parker v NC (part of Brady trilogy)
-Ds urged that but for coerced confessions (illegally-obtained evidence), wouldn’t have plead G
-ct says NO, “but for” cause betw. confessions and plea is not enough
-Ds were represented by counsel, and based decision on reasonably competent advice

Bordenkircher v Hayes S Ct (1978)—OK for prosec to carry out threats of harsher charge
-D args that gov violated DP when it carried out its threat and reindicted D w/habitual offender violation b/c D didn’t plead G
-ct HELD NO violation
-would be different if gov hadn’t given D notice of its intent (no different than if pros had indicted for both and offered to drop more serious charge if D plead G)
-DP violation when the state retaliates against D for exercising right, but NOT when it deters D from exercising right

statutory sentencing differentialsJackson prohibits stat scheme which penalizes right to trial (but has been narrowed to death penalty cases). Corbitt v NJ—allowed stat sentencing differential b/c the max. punishment for plea or trial was the same (just allowed option, during plea, for lesser sentence).
vindictiveness—as long as offers/threats are pre-trial, then there’s no presumption of vindictiveness US v Goodwin—pre-trial, have to show actual vindictiveness b/c before trial, presec’s idea of case hasn’t “crystallized” and thus is malleable

Frank v Blackburn 5C App (1980)—judge participation in plea process
-D contests sentence b/c judge impermissibly increased sentence after went to trial
-judge offered 20 yr sentence for G plea, and gave 33yrs after conviction
-violates Rule 11, but doesn’t matter b/c this is state court
-reasons to keep judges out of plea process:
-create impression in D that he wouldn’t receive fair trial
-makes it difficult for judge to be objective in determining voluntariness
-judge promising sentence inconsistent w/presentence investigation report
-may induce D to plead G even if innocent
-reason for increase was the testimony, graphic and influenced judge’s determination
-depends on who initiates sentence discussion: if judge is reacting to atty’s request for sentence, this is less likely vindictive
DISSENT—Pearce requires that judge affirmatively state reasons for harsher punishment

US v Harris—probation officer is arm of court and thus forbidden from participating in pleas (rule 11). thus, shouldn’t disclose to D or prosec the sentence differential betw plea and trial.

PLEADING W/O ADMITTING GUILT

North Carolina v Alford S Ct (1970)
-D can plead G even if professes innocence, if voluntary and there’s a factual basis
-BUT, judge has to question D directly on this issue: why are you pleading G if you say NG?

ISSUES in GUILTY PLEAS
-entry of plea
-rule 11
-boykin
-mccarthy
-withdrawal/vacating G plea
-impact of G plea on later assertion of right
-finality
-what can/cannot appeal
-what issues you never give up
-rationality/ so scared couldn’t be rational
-no knowledge
-coercion/threats
-statutory threats, gives D incentive to plea
-bordenkircher
-brady
-blackledge & perry
-trupper v roberts ???
when does coercion come in?
frank—judicial vindictiveness
-judicial participation

ACCEPTING/REJECTING PLEA

US v Ammidown DC App (1973)
-tr judge rejected plea bargain b/c public interest required D be tried on greater charge
-ct HELD, tr judge exceeded authority
-judge should give deference to prosec, BUT doesn’t have to be rubber stamp
-judge has right to access and evaluate prosec’s reasons for plea
-judge can reject, BUT has to show how prosec abused discretion
-here, no evidence that prosec failed to consider public interest

scope of discretionBean held that rule 11 doesn’t require judge to accept G plea. BUT, judge doesn’t have authority to reduce charge w/o OK from prosecutor.

FAILING TO STICK TO BARGAIN

Santobello v NY S Ct (1971)
-ISSUE: did state’s failure to keep promise from plea re: sentencing recommendation require new trial?
-prosec agreed to make no recommendation about sentence, but b/c new prosec took over case, didn’t know about agreement and made recommendation
-ct HELD that when plea depends on promise, it must be fulfilled

US v Benchimol S Ct (1985)
-gov agreed in plea bargain to recommend probation, but dist ct rejected recommendation
-D args that gov failed to fulfill its promise b/c didn’t recommend enthusiastically
-ct said NO. difference betw prosec expressing reservations/doubts and when it merely lacks enthusiasm (no right to enthusiasm)

binding before plea is entered?—before D pleads G, there’s no enforceable contract [but, maybe could claim detrimental reliance]
prosec withdrawal—just like D can withdraw plea if tr judge decides to impose more severe sentence, prosec can withdraw if judge decides to impose lesser sentence.

PROOF BEYOND A REASONABLE DOUBT

In re Winship—(1970) ct held that beyond a reasonable doubt was constitutional requirement in criminal trials as part of DP, and the presumption of innocence

Mullaney v Wilbur S Ct (1975)
-ISSUE: does placing the burden of proof on D for affirmative defenses comport w/Winship?
-ct HELD that DP clause requires prosecution to prove the absence of heat of passion
-burden of PRODUCTION, party has duty to produce sufficient evidence so it could be found by the jury
-burden of PERSUASION is the next step, requires convincing jury of that factual issue beyond reasonable doubt
-ME here made D do both burdens
-ct HELD, OK to give D burden of Production, but NOT OK to give D burden of Persuasion
-where there’s some evidence presented, reasonable provocation in heat of passion becomes an element of the crime
-state has burden of proving its absence (and this is not unusual)

Patterson v NY –defense of extreme emotional disturbance is different than heat of passion
-Sup Ct didn’t intend for Mullaney to extend to ALL affirmative defenses
element v sentence enhancerJones v US when fact is an element of the offense, and not merely a sentence enhancement, must be plead and proven at trial

BURDENS OF PRODUCTION & PERSUASION
Production Persuasion
-self defense—all states -SC, OH
-Insanity—all states -varies
-extreme emot. disturbance—NY -NY

Sandstrom v Montana—instruction to jury that a person intends the natural outcome of his/her actions in order to show intent for murder was unconstitutional b/c presumption shifted burden of persuasion to D to disprove intent


presumption of innocence—any suggestion that D bears burden of proof of innocence will be cause for new trial, BUT no const. right to instructions re: presumption of innocence
defining reasonable doubt stdCage v Louisiana—where instructions increased std of doubt to “grave doubt” this was unconstitutional. Sullivan v Louisiana—a jury instruction that violates Cage cannot be harmless error.
witness testimony—judge cannot instruct jury that they can’t believe witness testimony unless believe it beyond a reasonable doubt.
jail clothes—other courtroom procedures such as trying D in his jail clothes can affect the burden and the presumption of innocence, unconstitutional

Apprendi v NJ S Ct (2000)
-other than prior convictions, any fact that increases penalty beyond the statutory maximum must be submitted to jury and proved beyond reasonable doubt
-charged w/shootings and unlawful possession of weapons (but NOT with hate crime violation)
-D plead G and gov reserved right to request sentence enhancement
-ct held evidentiary hg on purpose of shootings and judge found by preponderance of the evidence that his purpose was racially motivated
-D args that burden should have been higher (reas doubt) and that it should have been decided by jury, not judge
-HOLDING—if judge considers a factual issue, and that fact under statutory scheme, enters into judge’s sentencing consideration and it results in a greater sentence, that’s a violation of DP [even if judge’s decision fell w/in sentencing scheme?? don’t know]
**look for sentencing structure that adds in add’l fact, like race, possession of firearm, harm to victim. If so, D is entitled to trial by jury & proof beyond reasonable doubt

TRIAL BY JURY

Pool—140—come into courthouse
Venire—30-40—go into courtroom
Petit—12/14—panel

Right to fair cross-section of jurors on venire stage

Why jury? Generates public confidence in court proceedings; public participation in process; potential bias w/judges alone b/c they are gov officials

Duncan v Louisiana S Ct (1968)
-LA state const. granted jury trials only in capital or hard labor cases
-D args that 6A and 14A violated b/c no jury trial where max sentence was 2yrs in prison
-ct found that jury trial is “fundamental right” that should be incorporated to states by 14A for all trials that would be entitled to jury trial in federal courts
-there is still a certain class of petty offenses that don’t require jury trial
-must look to max penalty allowed (not actual sentence imposed)
-petty offenses are < 6mos and <$500 fine

Baldwin v NY S Ct (1970)
-defined line for petty offenses at <6mos in jail
Blanton v City of North Las Vegas—ct didn’t hold that offense was beyond petty even though it had add’l penalties such as losing license. BUT, ct said that if D can prove that add’l penalties signaled the legislative determination that crime was serious, CAN have right to jury trial
Lewis v US—when deciding if petty, look at each offense separately, don’t add up
McKeiver v PA—no right to jury for juvenile trials

COMPOSITION OF JURY

Powers v Ohio S Ct (1991)
-D claimed race discrimination b/c of prosecution’s use of peremptory challenges even though excluded jurors were black and D was white
-D args that prosec use of discriminatory peremptories violates 6A right of fair cross section, 14 EP clause, and OH constitution
-ct HELD, no 6A violation (only deals w/venire)
-no right to jury w/D’s own race, but right to jury selected w/o discrimination
-Swain v Alabama—ct didn’t find EP violation in single case, but found it in pattern of cases
-BUT, then Batson allowed challenge re: single case—can’t use race to determine juror bias or competence
-does D have standing to bring case? 3 factors: (1) must have suffered an injury in fact [yes, suffers as member of the community when there’s racism]; (2) close relation to 3d party [yes, mutual interest in eliminating racism]; (3) 3d party must be hindered from bringing claim [hard for individual juror to show discrimination]
-can take race of D into account, but D doesn’t have to be of the same race as the excluded jurors
-BOTTOM LINE: can’t tolerate discrimination in selecting jury—doesn’t matter race or gender of challenger

PFC for Batson
(1) juror in protected class
(2) pfc for intentional discrimination [look to questions in voir dire (not in MA), actions toward this juror, look to race of D, pattern of exclusion, atty reactions to answers, # of prospective jurors & % of minority]
(3) burden shifts to prosecution (or D) to show neutral reason for strike
(4) burden shifts back to show that it’s pretextual

civil cases: ct held that Batson applied to civil cases, too in Edmonson v Leesville Concrete b/c there was state action b/c it occurred in gov courthouse
defense strikes: ct held that Batson applies to strikes by criminal defendants, too, though D has right to remove jurors w/proven racial animus.
gender: applies to discriminatory strikes based on gender [and state statute that allowed women jurors to waive obligation but not men violated constitution]
statistics: can show discrimination by using statistics

Illusory? b/c it’s so easy to state a non-racial reason for the strike, Marshall (in concurrence in Batson) asserts that the whole system of peremptory strikes should be eliminated

JURY SIZE AND AGREEMENT
Apodaca v Oregon S Ct (1972)
-does 6A require unanimous verdicts?
-in Fed cts, YES
-in State cts, NO
-maybe ct doesn’t see this right as fundamental/significant?
-earlier case decided that 12 person jury wasn’t constitutional requirement
-D args that need unanimity to give meaning to “beyond reas doubt,” but ct says NO
-D args needed to fully get cross-section of community, ct says NO
DISSENT—when don’t require unanimity, stifle meaningful conversation and minority voices

Ballew v Georgia—can have juries w/as few as 6 members
Burch v Louisiana—BUT, 6 person juries have to be unanimous
reducing size—fed rules crim pro 23(b) allows parties to stipulate in writing to smaller jury, or if necessary for judge to dismiss juror and have 11 remaining

single theory of guilt—don’t have to have a unanimous verdict on the theory of 1st degree murder. ct held that premeditation and felony murder are merely two different mens reas for same offense. [in MA, have to agree on each/all theories]
multiple violations—where multiple violations were necessary to constitute offense, jury had to agree on each violation
insufficiency of evidence on one theory—where jury was presented w/multiple theories and one was then found to have insufficient evidence, jury’s verdict could still stand b/c they can decide if there’s an adequate factual basis (maybe would have been different if it concerned adequate legal basis)

6TH AMENDMENT RIGHT TO CONFRONTATION

Coy v Iowa—witness was behind screen, ct held that this was unconstitutional b/c D has right to look at his accuser in the face, though concurrence emphasized that this right is not absolute.

Maryland v Craig S Ct (1990)
-ISSUE: does child witness in child abuse case testifying via one-way TV violate confrontation clause?, ct held NO
-MD statute allowed child to testify via TV if judge determines that child will suffer serious emotional distress upon seeing D (not just testifying) that cannot communicate
-here still preserve most aspects of 6A, physical presence, oath, can observe demeanor of witness [but DON’T see witness’ reaction to D]
-allow in this exception only where necessary and important to public policy [here it’s the protection of child victims from trauma]
**but, creates an image in the minds of jurors b/c child can’t even be in same room w/D
-fact that this would deter witnesses doesn’t matter—can’t achieve state public policy in other way (don’t force kids to testify)
-confrontation clause is clear—face to face confrontation of witnesses

Bruton v US S Ct (1968)—joint trial of Ds, cannot allow in co-D confession b/c violates 6A right to confrontation b/c co-D doesn’t have to testify. limiting instructions aren’t adequate.
interlocking confessions—confessions that implicate co-D are suspect and must be subject to cross-exam, even if interlocking. Lee v Illinois
Cruz v NY: abandoned interlocking doctrine, b/c the more similar the confessions are, the more devastating they will be for D b/c jury will be more likely to believe them

hearsay exceptions: doesn’t violate the confrontation clause if falls w/in a firmly rooted exception (Ohio v Roberts) or if it has sufficient indicia of reliability
co-conspirator statements: statements made in furtherance of conspiracy b/c likely to be reliable if in furtherance. don’t have to establish unavailability of witness.
no corroborating evidence: Idaho v Wright—when looking for indicia of reliability, have to look to circumstances of statement alone, not to corroborating evidence.

RIGHT OF D TO BE PRESENT DURING TRIAL

after trial has begun: Fed rule crim pro 43, D’s voluntary absence after trial has begun shall not prevent trial from continuing. Voluntary absence is waiver of right to be present, Taylor v US, don’t need explicit relinquishment of rights
before trial has begun: can’t begin trial w/o D present. Can’t impute knowing waiver of right to be present when D hasn’t shown up. Crosby v US
conferences in chambers: US v Gagnon: judge interviewed juror w/ct reporter and atty for one of the Ds present in chambers. Ct held that didn’t violate 6A right of all Ds (even though there is a right to be present even when witness isn’t being confronted) b/c D doesn’t have right to be present for every interaction betw judge and juror. AND, Ds waived Rule 43 right to be present at every stage of trial b/c they failed to assert right to be present, though they knew of conference. [maybe not critical stage?]
disruption: D can e ejected after warning, but can come back in if not disruptive

POST CONVICTION BAIL

-McKane v Durston—S. Ct No fed constitutional right to bail after conviction (pre-appeal)
-state statutes vary—NY stat, uses same factors used in pre-trial release except instead of assessing likelihood of conviction, look at merit of appeal. AZ stat allows bail only if confinement would endanger D’s life.

-Bail Reform Act—18 USCA Sect 3143(b)—D has burden of proving (1) D is not likely to flee or pose a danger, (2) appeal is not to delay, (3) appeal raises substantial issues of fact/law, (4) if questions of fact/law are decided in D’s favor, will likely have reversal of conviction.

-Habeas—D who was G in state cts but whose conviction was overturned in fed ct on habeas appeal. Can look to (1) flight, (2) dangerousness, (3) state interest in continuing custody/rehab (strongest where remainder of sentence is long), (4) likelihood of state prevailing on appeal.

SENTENCING

GOALS:
(1) Deterrence, specific—D only; General—others, too. More effective for planned out crimes.
(2) Separation/Incapacitation—for serious crimes w/high chance of repetition
(3) Rehabilitation—usually goal of probation.
(4) Retribution—punishment, but must be proportional

-Frankel—explained that questions w/sentencing are the appropriate amt of discretion and who should exercise the authority of that discretion. Judges have certain biases and aren’t trained for sentencing, and not as much reflection/discussion re: sentencing b/c usually not appealable.

US v Grayson S Ct (1978)
-issue: sentencing considerations, should trial judge have considered D’s false testimony in deciding sentence?—it’s OK to consider this
-D’s truthfulness IS probative of prospects for rehabilitation

Fed Sentencing Guilelines—allows increase in sentence if D impedes justice, and decrease if D accepts responsibility (Sup ct held that decreasing sentence b/c D is contrite does NOT violate 6A or 5A b/c D can still be contrite and go to trial for issues unrelated to factual guilt)

US v Dunnigan (1993)—expanded on Grayson. Can increase sentences b/c of untruthfulness based on rehab OR punishment. BUT, where D objects to sentence enhancements, ct must do Independent Review of ev/findings to determine willful impediment of justice.

Roberts v US (1980)—CAN impose harsher sentence when D refuses to cooperate w/law

5A at sentencing—pleading G doesn’t waive D’s right to remain silent and NOT self-incriminate, and 5A prohibits ct from drawing adverse inference from D’s silence at sentencing—Mitchell v US—D reserved right to contest amt of drugs at sentencing and decided not to speak, ct held CAN’T draw adverse inference.

Re-trials—when lower ct retries case after appellate reversal, doesn’t have to impose same sentence, BUT, if imposes harsher sentence, must write out why b/c presumption of vindictiveness (NC v Pearce). When lower ct retries b/c it granted new trial ITSELF, no presumption of vindictiveness. When first trial was plea, and second trial was trial, no presumption of vindictiveness. Alabama v Smith, OK for ct to impose harsher sentence on 2d trial (where plead in first one) b/c judge heard new information that was unavailable when D plead G.

Solem v Helm S Ct (1983)
-ISSUE: Does 8A forbid life sentence for 7th nonviolent felony? YES [sup ct directed dist ct to grant habeas corpus relief to state ct D]
-state statute, recidivist, allowed life imprisonment w/NO parole for multiple misdemeanors
-when deciding the proportionality of sentence, look at (1) gravity of offense and harshness of penalty, (2) sentences on other criminals in same jurisdiction, (3) sentences for same offense in other jurisdictions.
-here, life imprisonment w/o possibility of parole is too disproportionate to the crime of writing a bad check

REMEDIES




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