Crim Pro II Outline

8/4/2019 Crim Pro II Outline

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CRIM PRO II

I. THE CHARGING DECISION

Prosecutorial Discretion

o Enforcement for Serious Crimes

Inmates of Attica v. Rockafeller(1973) has Discretion To Decide ToProsecute

prison riot inmates allege revenge killings by Cos sue to require to investigate

and prosecute

has discretion re: decision to investigate, arrest, and prosecute regardless of

statute mandating prosecution

oNO standard for review, regulatory or statutory policies of prosecution too

many problems w/ ct supervising prosecutorial decisions substitution of

cts decision to prosecute for USDA unwise

oin the absence of egregious violations ct. has no power to force prosecution

o separation of powers issue cts. getting supervision would place reviewing

court in undesirable and injudicious posture of becoming super-prosecutors

3 Obstacles to Claims Seeking to Force Prosecution

separation of powers judges dont know reasons why decline to prosecute scarce

time and resources!

standing private citizen lacks a judicially cognizable interest in prosecution or non-prosecution of another person

EP violation standard

o EP only prohibits intentional discrimination claim would only successf

if could show declined to prosecute b/c of conscious decision to treat race

differently

o must also show discriminatory effect

U.S. v. Armstrong(1996) Selective Prosecution Claim Must be Supported byClear Evidence That Similarly Situated Individuals Could Have Been Prosecuted

but Werent

charged w/ drug trafficking note racial disparity in state v. federal cases

motion for discovery re: selective claim

discretion is subject to constitutional constraints EP prohibits decision to

prosecute based on unjustifiable standard: race, religion, or other arbitrary

classification


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to rebut presumption that hasnt violated EP must show, through some clear

evidence, that similarly situated individuals of a different race werent prosecuted

ostudy listing 24 by race and whether they were prosecuted NOT sufficient

evidence

didnt ID any non-black individuals that could have been charged for

same crime but werent

Vindictive Prosecution

cant increase charges for same conduct after successful appeal presumption

of vindictiveness

any other circumstances:presumption acted in good faith must show improp

motive

o never happens proving vindictiveness pretty much impossible

o Enforcement for Low-Level Crimes

Wayte v. U.S. (1985) Passive Prosecution Policy Constitutional

refused to register for draft sent letters to governmental officials informing them

hes not registering

out of 674K who refused to register16 prosecuted based on passive prosecution

policy which prosecuted those who said they werent registering or those reported

by others

passive prosecution policy constitutional

onot motivated by discriminatory purpose or discriminatory effect

those prosecuted selected themselves for prosecution by openly

refusing to register after being reported and warned

hasnt shown prosecuted b/c of protest activities

oNO 1st Amendment violation policy furthered important government intere

and didnt limit more speech than necessary to ensure goal

Methods of Charging

o 2 ways: indictment or information

o Indictment

Grand Jury

indictment formal written accusation of a crime, made by a grand jury and presente

to a court for prosecution against the accused person


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ALL federal felonies screened through GJ

oGJ right not incorporated to states but most states have GJ requirements

o ex parte + secret presentation of evidence

o failure rate


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Distinguished from GJ

adversarial has right to counsel

judge decides

public

possibly dismissal rate

present evidence can cross-x judge decides

critical stage 6th Amn. right to counsel applies

frequently waive resources: could seek indictment anyway, $$$

Joinder and Severance

o FRCrimP R 8 Joinder of Offenses and of s

(a) Joinder of Offenses: indictment/information can charge 2+ offenses (fel. and misd.) ifthey are of the same/similar character, based on the same act or transaction, or a

connected with or parts of a common scheme or plan

(b) Joinder of s: indictment/information can charge 2+ s if alleged to have participated in

the same act or transaction or same series of acts or transactions constituting offense(s).

Can be charged in 1+ counts together or separately. All need not be charged in each

count.

oFRCrimP 14 Relief from Prejudicial Joinder

(a) Relief: if the joinder of offenses or s in an indictment, information, or trial appears toprejudice a or ct can sever counts, trials, or provide any other relief that justice

requires

(b) s Statements : before ruling on motion to sever, court may order to produce any

statements it intends to use as evidence for in camera review

oU.S. v. Velasquez(1985) CANT Charge Different People w/ Similar, but Different

Crimes in 1 Trial

5 s: 5 cocaine trafficking, 1 heroin charges 3 conspiracy to retaliate against govt agents

when a group of people are charged w/ participating in same crime, they are ordinarily tried

together, even if evidence is stronger against some danger of prejudice to least guilty or b

of confusion of multi- trial is in all but most unusually circs. considered outweighed by

economies of a single trial in which all facets of crime can be explored once and for all

misjoinder on heroin charges unrelated to other offenses, none of co s involved in

heroin sales and nothing to suggest they were made pursuant to a common plan w/

cocaine trafficking


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cocaine + heroin similar enough offenses to charge in same indictment (join

offenses) NOT offenders

re-trial cocaine weak evidence misjoinder could have prejudice

BUT overwhelming evidence of guilt for heroin charges harmless error

misjoinder cocaine + retaliation no showing retaliation was related to specific drug sale

involved

BUT harmless error b/c overwhelming evidence of guilt

CANT charge different people w/ similar, but different crimes in 1 trial

multiple joinder must be same event/plan/transaction

o Zafiro v. U.S. (1993) TC Should Only Sever When Serious Risk of Compromising 1

s Specific Trial Rights search warrant found lots of drugs, $$ all 4 arrested

motion to sever denied based on mutually antagonistic defenses (all claiming they didnt

know what was going on and blaming others) all convicted (conspiring to possess w/

intent to distribute)

proper joinder TC should only grant severance if there is serious risk that joint trial would

compromise one s specific trial rights or prevent jury from making a reliable judgment re

guilt or innocence

mutually antagonistic defenses not prejudicial per se requiring severance

NO right to severance just b/c less likely to be acquitted in joint trial

II. BAIL, DETENTION, AND THE RIGHT TO A SPEEDY TRIAL

Bail and Detention

o arraignment w/i ~24h after arrest determine bail

factors considered

severity of crime

past conduct (esp. past incidents of skipping bail)

s characteristics (local connections, wealth)

judges choices

release on recognizance sign agreement promising to show up


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attach conditions to release in custody of specific person, bail, drug monitoring and

treatment, check in w/ relevant authorities, seize passport

order continued confinement NO conditions will reasonably ensure shows up for

trial or serious danger to others

o 8th Amnd: Excessive bail shall not be requireddoesnt promise bail

o Stack v. Boyle (1951) Bail is Unconstitutionally Excessive When Set Higher than

an Amount Reasonably Necessary to Ensure s Presence @ Trial suspected communists challenge bail: originally $2500-$100K; venue moved to CA

$50K/each

: evidence of $$, family connection, prior criminal records; : 4 people charged w/

same crime forfeited bail

bail set at a higher figure than an amount reasonably calculated to assure will stand trial is

excessive

should be calculated based on standards relevant to ensuring particular s

attendance @ trial

oevidence that 4 other people forfeited bail insufficient evidence to justify

o U.S. v. Salerno (1987) Ct. Can Consider Dangerousness in Determining Bail

29 ct indictment RICO, fraud, extortion, conspiracy to commit murderdenied bail b/c no

condition(s) of release would ensure publics safety challenge Bail Reform Act of 1984

Bail Reform Act constitutional

NO 5th Amnd violation

osufficient safeguards hearing, counsel available, high evidence standard,

immediate appeal available + govt important general interest in protecting

public from people indicted for serious crimes outweigh individual liberty

interest

NO 8th Amnd violation

o 8th Amendment doesn't require release on bail when Congress has mandated

detention on the basis of compelling interest other than prevention of flight,like here

o primary function of bail is to safeguard courts role in adjudicating guilt or

innocent but 8th Amnd. doesnt prohibit govt from pursuing other compelling

interests through regulation of pre-trial release

Right to a Speedy Trial

o Protections


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6th Amnd In all criminal prosecutions the accused shall enjoy the right to a speedy and

public trial

statutes of limitations

DP delay unjust and prejudicial to may violate

o Barker v. Wingo (1972) 4 Factors Speedy Trial: Length, Reason, Assert,Prejudice

murderco tried 1st b/c stronger case and needed his testimony 5 trials and 4y later

co convicted bail didnt object until 12th continuance denied convicted

right to speedy trial different from other rights

societal interest

deprivation may work to s advantage witnesses unavailable

more vague impossible to tell exactly when violated

right NOT quantified in specific number of days or months

who fails to demand speed trial NOT waiver factor to consider

factors

length of delay

o acceptable length depends on circs.

reason for delay

o deliberate delay to interfere w/ defense

o negligence, time

omissing witness

s responsibility to assert right

o assertion strong evidentiary weight

o failure to assert makes challenge hard to prove

prejudice assessed in light of 3 reasons for speedy trials:

o prevent oppressive pre-trial incarceration disrupts family, cant have a job

ominimize s anxiety and concern living w/ anxiety, suspicion, hostility

unacceptable

reasons


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o limit impairment on defense incarcerated cant help gather evidence, find

witnesses, etc.

NO violation although significant delay and mostly w/o good reason, didnt seem wa

speedy trial and minimal prejudice

4y = significant delay

only 7m was for good reason everything else was failure to properly try co

minimal prejudice: didnt show any witness/evidence was unavailable, released on

bail most of the time

didnt assert right didnt object to continuances between 58-62 maybe hoped

delay would result in dismissal, possibly gambling on co s acquittal

o Speedy Trial Act of 1974

federal info/indictment must be filed w/i 30d of arrest or summons

trial must be w/i 70d of filing info/indictment or first appearance, whichever later

detained pending trial must start w/i 90d of detention

NOT including unavailability of or key witness, transportation, reasonable maneuvering

by co or other proceedings involving (ALL delays caused by pre-trial motions

necessitating a hearing even if reasonably necessary)

remedy dismissal w/ or w/o prejudice depending on seriousness of crime, circs. of delay,

potential effect on administration of justice

usually complying w/ stat =compliance w/ 5th Amnd

o U.S. v. Lavasco (1977) NO DP Violation for Indictment/Prosecution for

Investigative Delay Even w/ Some Prejudice to s Case firearms charges indictment 18m after alleged crimes occurred

s evidence of prejudice: w/i 1st month of investigation admitted stealing 5/8 guns w/

strong evidence of other 3, not much info gathered in next 17m; lost testimony of 2 materia

witnesses

NO DP violation for prosecution after investigative delay, even if some prejudice to scase

SoL is s primary protection

ct. must consider reason for delay trying to ID participants other than

not required to file charges as soon as P/C before determining that theyll be able

to prove case BRD

o unwarranted charges; delay


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o investigative delay delays used to gain tactical advantages over

o Doggett v. U.S. (1992) Excessive Delay Presumptively Compromises Reliability

(Prejudice)

80 indicted for conspiracy to import and distribute cocaine left country couldnt be arreste

drug charges in Panama U.S. police dont try to find him until 88 when name comes up

in credit check w/ outstanding warrant

entitled to relief when govt negligence causes delay 6x longer than generally sufficien

to trigger judicial review, and when presumption of prejudice, albeit unspecified, is neither

extenuated, as by acquiescence (Barker), nor persuasively rebutted

Barkerfactors

o extraordinarily long delay

o to blame investigators made no serious effort to determine whether was

really abroad

o didnt know of charges couldnt assert right

o excessive delay presumptively compromises trial reliability in ways that neithe

party can ID

consideration of prejudice isnt limited to the specifically demonstrable

impairment

III. GUILTY PLEAS AND PLEA BARGAINING

Types of Pleas

o conditional plea plea of guilty or nolo contendere entered w/ ct approval and

consent reserving right to appeal any adverse determinations on 1+ pretrial motions

successful appeal plea w/d new one entered

o nolo contendere plea plea by which doesnt contest or admit guilt

consider parties views, public interest in effective administration of justice

o guilty plea accused person's formal admission in court of having committed the

charged offense

o not guilty plea

Guilty Pleas as a Substitute for Trials

o Plea Process

FRCrimP 11


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failure to enter plea = not guilty plea

Advising and Questioning the : before accepting guilty or nolo contendere plea ct

must inform and make sure understands:

o can use any of s statements made under oath for prosecuting perjury

o right to

plead guilty

jury trial

represented by counsel and have appted counsel

right to confront and cross-x witnesses

protection from self-incrimination

testify and present evidence

require witnesss attendance

o guilty plea accepted = waiver of rights

o nature of pending charge and max. min. punishment

Henderson v. Morgan incorrect description of the crime

charged in the guilty plea colloquy violated DP

o ct. authority to order restitution

o ct obligation to apply sentencing guidelines

o terms of any plea agreement provision waiving right to appeal or collaterally

attack sentence

Ensuring the Plea is Voluntary: ct. must determine plea is voluntary and didnt result

from force, threats, or promises (other than plea agreement)

Determining the Factual Basis for the Plea: ct. must determine that there is a factual

basis for the plea

Withdrawing a Guilty or Nolo Contendere Plea: can withdraw plea

o before ct. accepts it

o after ct. accepts but before sentencing if

ct rejects plea agreement

can show fair and just reason for requesting withdraw


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Finality of a Guilty or Nolo Contendere Plea: after sentencing cant w/d plea and it ca

only be set aside on direct appeal or collateral attack

Recording the Proceedings: plea proceedings must be recorded by a court reporter o

suitable recording device; guilty or nolo contendere pleas must include inquiries an

advice to as required

Harmless Error variance from the requirements of this rule is harmless error if it

does not affect substantial rights

oU.S. v. Dominguez-Benitez(2004) can only be successful in claiming

judge didnt say required things under R11 if they can show there is a

reasonable probability that, but for the R11 error, wouldnt have plead

guilty

U.S. v. Broce (1989) Fact that Decided they Wrongly Plead Insufficient to SetAside an Otherwise Valid Guilty Plea

plead guilty to 2 separate counts of conspiracy and didnt challenge plea colloquy

or adequacy of counsel

after conviction based on guilty plea is finalized and seeks to reopen the

proceeding ask whether the underlying plea was both counseled and voluntary; if

the answer is in the affirmative, the plea, as a general rule foreclosed collateral

attack

oTC complied w/ R11

o fact that later decided they wrongly plead not sufficient evidence to set

aside an otherwise valid guilty plea

NC v. Alford(1970) Express Admission of Guilt is NOT Necessary for Valid GuiltyPlea

indicted for murder claimed innocence but plead guilty of lesser incl. offense b/c he

faced CP if he didnt TC confirmed he wanted to plead

can voluntarily, knowingly, and intelligently consent to imposition of prison

sentence even if unwilling or unable to admit participation in acts constituting the

crime

oan express admission of guilt is not necessary for a valid plea

o guilty plea to avoid or reduce certain sentence isnt necessarily compelled or

involuntary

ocan accept nolo contendere pleas in which doesnt admit guilt same

thing labeled differently

o Role of Defense Lawyers


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Hill v. Lockhart(1985) NO Prejudice When Didnt Allege that If Given Correct Info He

Would Have Insisted on a Trial Instead of Pleading Guilty

2y after plead guilty to murder and robbery files habeas b/c ct. appt. atty didnt tell him

that as a 2x offender he had to serve sentence before eligible for parole

Strickland2-part test applies to guilty plea challenges baesd on ineffective

assistance of counsel: must show representation unreasonable and prejudicial

o to satisfy prejudice requirement: must show that there was reasonable

probability that, but for counsel's errors, he would not have pleaded guilty

and would have insisted on going to trial

NO prejudice when didnt allege that if he had correct info re: parole eligibility he

wouldnt have plead guilty and instead would have gone to trial, nor any evidence

that could support the conclusion that he placed particular emphasis on his parole

eligibility in deciding whether to plead

Glover v. U.S. (2001) 6-21m increase in prison sentence satisfied prejudice prong

U.S. v. Barnes (1996) atty didnt realize qualified as career offender that would increase

sentence 250x NO deficient performance time constraint of plea bargaining so close t

change of plea hearing possible that he didnt or couldnt carefully analyze

Plea Bargaining

o 3 Types

charge bargains in exchange for guilty plea promises to drop or not add specified

charges

sentence recommendations agrees to recommend or not to oppose a particular

sentencing range

sometimes not followed by ct

sentencing range agreement agrees on sentencing range or that particular provision of

sentencing guidelines or sentencing factor n/a

rare and prohibited in some JDs

o Voluntariness

Brady v. U.S. (1970) Plea Bargains Legit; Plea NOT Invalid b/c Motivated by Sentence

kidnapping initially plead not guilty changed mind when co was going to

testify against him ct accepted guilty plea after asking 2x re: voluntariness 8y

later challenges plea claiming coercion

valid guilty plea


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oplea not invalidated b/c it was motivated by s desire to receive certainty o

probability of lesser sentence rather than take chances w/ trial

o voluntary plea: no threats or promises, able to weigh risks, competent counse

o intelligent plea: competent counsel, aware of charge and evidence, no

evidence of incompetence, chose to plead after co did

o

not entitled to w/d guilty plea after its acceptance b/c he miscalculated qualityof s case or likely penalties

Bordenkircher v. Hayes (1978) NO DP Violation When Carries Out Threat to Re-

Indict w/ Higher Charges that Would Already be Subject to b/c Didnt Accept Plea check forgery : plead guilty or youll be charged under 3 strikes law mandator

life sentence didnt plead re-indicted convicted

NO DP violation when carries out threat made during plea negotiations to re-

indict on more serious charges when plainly subject to prosecution for if doesnt

plead guilty to original charges

o by tolerating, legitimizing, and encouraging plea bargaining S.Ct. necessarily

accepts that s interest is to persuade to give up right to plead not guilty

not allowing that motivation would contradict purposes of plea

bargaining and basically prohibit bargaining

ojust openly presented w/ unpleasant alternatives of refusing to plead

o as long as have P/C for crime and not based on unjustifiable standard

discretion

o Subject Matter of Plea Bargains

plea bargaining doesnt inherently undermine the voluntariness of resulting plea or validity o

the harsher sentence imposed after trial

BUT certain subjects are off-limits

U.S. v. Pollard(1992) Plea Wiring Constitutional unless Evidence of Bad Faith or

No P/C

espionage gives info to Israel during interrogation calls wife w/ secret code wor

to get rid of docs wifes illness gets exacerbated in jail : both plead guilty or

no pleas at all both plea and gets leniency for wife

4y later [after wife gets out] challenges plea as involuntary

plea wiring constitutional offer of adverse or lenient treatment for some perso

other than is NOT so coercive as to risk inducing false guilty pleas


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o had P/C to arrest and prosecute both

o no evidence of using bad faith to get more leverage: indicted and intended to

prosecute wife OR offer leniency in exchange for pleas

o practice = coercive or makes plea involuntary if it creates improper pressur

that would be likely to overbear will of some innocent person and cause the

to plead guilty:

physical harm

threats of harassment

misrepresentation

improper promises that have no relationship to s business (bribes)

Newton v. Rumery(1987)

journalist calls SA survivor but didnt actually know he was talking to survivor

brings charges for witness tampering reach agreement to drop ALL charges inexchange for dropping civil claims under 1983

valid agreement voluntary: was sophisticated business man, not

incarcerated, represented by experienced crim.def. atty who drafted agreement,

considered for 3 days before signing

o possibility that some release-dismissal agreements may not be voluntary or

knowing doesnt justify invalidating all agreements, esp. could be

U.S. v. Mezzanatto (1995) Voluntary and Knowing Waiver of Exclusionary Privilegeof Plea-Statement Rules Valid

FRE 410 no statement in plea discussion can be used against party making them

plea bargaining condition that be truthful lied convo ended contradicting

trial testimony want to into plea bargaining convo statements to impeach

agreement to waive exclusionary provisions of plea-statement rules was valid and

enforceable where conferred w/ his counsel after proposed waiver as

condition of proceeding with plea discussion and never complained that he

entered into waiver agreement unknowingly or involuntarily

ow/o agreements may refuse to plea bargain

o Plea Bargains as Contracts

Santobello v. NY(1971) When s Promise Serves as an Inducement orConsideration for Plea Must be Fulfilled

: plead guilty to lesser-included offense; : make no sentencing rec.


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new def. atty w/d guilty plea b/c evidence from illegal search delays new

recommends max sentence

judge says isnt impacted by plea max sentence based on criminal history

when plea relies on promise/agreement from to a significant degree to the point o

being part of inducement or consideration must be fulfilled

o even though judge said not influenced by it, justice and recognition of s dut

re: promises in plea bargaining best served by remand

Santobello + Brady can promise charging or sentencing concessions w/o involuntary

plea but must keep its promises

Marby v. Johnson (1984) Acceptance of 1st Proposed Plea Bargain DOESNT Createa Constitutional Right for Specific Enforcement After Its Withdrawn

convicted burglary, assault, murdermurder reversed sentenced to concurrent

sentences plea offer: plead guilty get concurrent sentences accepts later

w/d and changes offer to consecutive accepts later challenges

s acceptance of 1st proposed plea bargain does NOT create constitutional right

to have bargain specifically enforced after told it was a mistake and w/d offer

oNO collateral attack b/c not product of deception, based on no unfulfilled

promise, and voluntary and intelligent

distinguished from Santobello plea wasnt induced by w/d offer

knew what sentence would be

fully aware of consequences of plea when made

U.S. v. Traynoff(1995) reasonable and detrimental reliance is required for to be require

to follow w/d plea agreement

Rickets v. Adamson (1987)

agrees to testify against co- for decreased sentence both convicted

convictions reversed refuses to testify anymore because he fulfilled his

agreement unless he gets certain additional things rescind plea agreement

bring capital charges

s breach of plea agreement by refusing to testify at co s retrial removed DJ bar

prosecution of on original charges, after had been sentenced and began

serving term on lesser offense, where plea agreement provided that parties would

be returned to status quo ante if refused to testify.

IV. DISCOVERY AND DISCLOSURE

Disclosure by


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o General Discovery Obligations

FRCrimP 16(a)

upon s request must disclose to

o substance of any relevant oral statement made by in response to

interrogation by person known to be govt agent if intends to use @ trial

owritten recorded statements w/i possession knows/should know exists

owritten record of oral statement made re: interrogation

o = organization any statement made by officer , agent, or employee or

someone personally involved in conduct

o s prior criminal record

o books, papers, data, photos, tangible evidence /i possession intended for

use @ trial and obtained from or belonged to

o results/records of any physical/mental exam or scientific test w/i

possession, knows/should know exists, material to defense or intended to

use @ trial

o summary of any expert witnesses intended to use @ trial including: opinions,

reasoning, qualifications

DONT have to disclose: reports, memos, other internal govt docs made by atty or

govt agent, or statements made by potential witnesses (safety concerns,

possibly to prevent from creating defense to match evidence)

FRCrimP 16(d) judge can, for good cause, deny, restrict, or defer discovery or inspection,

or grant other appropriate relief

U.S. v. Nobles (1975) work product doctrine applies to criminal cases

o Constitutional Disclosure Obligations

Brady v. MD suppression of material evidence favorable to upon request violates DP

regardless of good or bad faith

no timing forBradydisclosures DP presumably requires disclosure giving sufficient

time to effectively use evidence

U.S. v. Bagley regardless of request favorable evidence is material constitutional error

when suppressed by if reasonable probability that had it been disclosed to result of

proceeding would have been different

4 factors of materiality

o undermine confidence in verdict


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o doesnt need to show that undisclosed evidence would discount inculpatory

evidence to be insufficient for conviction

o dont need harmless error review

o has discretion (NOT open file) BUT has a duty to know about favorable

evidence known by everyone acting on s behalf

Kyles v. Whitley(1995) Violation if Didnt Disclose Exculpatory Evidence thatCould Have Reasonably Achieved a Different Result if Disclosed old lady killed in grocery store parking lot

evidence pointing towards guilt: 4 eyewitness IDs, same brand of pet food in house,

gun found behind stove, purse and ID in garbate

didnt disclose (exculpatory evidence): informant gave conflicting statements, 2

witnesses didnt match (more like informant), list of cars in parking lot didnt

include s car

convicted

favorable material evidence not disclosed if it had different result was reasonabl

possible violation

o disclosure would have made s case weaker and s case stronger

similarity of and informant informant more closely matched

witnesss descriptions

difference in witnesss testimony about perspective of crime destroywitness credibility

other witnesses IDing would be damaing to b/c only saw him

leaving

attack reliability of the investigation in failing to consider informant as

suspect and tolerating serious possibility that incriminating evidence

was planted

U.S. v. Ruiz Const. doesnt require to disclose impeachment material re: informants or

other witnesses before entering into a plea agreement

Disclosure by o Constitutional Disclosure Obligations

asymmetrical no equivalent ofBrady doesn't have constitutional or statutory

requirement to turn over inculpatory evidence unrequested

Williams v. FL (1970) Can be Required to Provide Notice of Alibi Defense andWitnesses


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challenges FL RCrimP that required him to disclose whether hes going to use an alib

and details of alibi under 5th Amnd.

NO 5th Amnd. violation in requiring to provide notice of alibi defense and disclos

witnesses

o5th Amnd. doesnt give a constitutional right to wait until s case rest

before announcing defense just like it doesnt entitle him to wait verdict on

case-in-chief before deciding to testify

o rule didnt impact choice to present alibi, just sped up process

Brooks v. TN(1972)

required to testify before any other witnesses cant decide to testify after 1st

witness asked 1st ?

violated s 5th Amnd + CANT be penalized for silence at close of states case

by being excluded from testifying later

o s interest in preventing testimonial influence by requiring to testify before

any other testimony for the defense is heard is NOT sufficient to override

right to remain silent in trial

Wardius v. OR(1973) fundamentally unfair to require to disclose details of own case

while at the same time subjecting him to the hazard of surprise re: refutation of evidence

disclosed

result rules provide for reciprocal discovery

o

Sanctions for Nondisclosure

Taylor v. IL (1988) TC Can Exclude Testimony If Explanation for Not Complying wDiscovery Rules Reveals Intentional Omission Intended to Gain Tactical Advantage

convicted attempted murderpre-trial list 4 people going to testify 2nd day of trial

( pretty much done with case), wants to add new witness because they know

where person was offer of proof outside of court and witness testifies more

favorably after case

witness: saw victim w/ guns and saying they were going after BUT only met 2y

after assault acknowledged that atty went to his house before trial

TC excluded witnesss testimony

6th Amnd compulsory process clause does not create absolute bar to preclusion o

testimony of witness as sanction for violating discovery rule

o considerations: integrity of adversarial system, interest in fair and efficient

administration of justice, potential prejudice to truth-determining trial process


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oTC can exclude testimony if partys explanation for refusal to comply with

discovery rules reveals

omission was willful

motivated by desire to obtain tactical advantage to minimize

effectiveness of cross-x and presentation of rebuttal evidence

oappropriate in this case:

deliberately seeking tactical advantage counsel interviewed witness

before trial + amended answer to discovery 1 day in to trial w/o

including witness

other sanctions ineffective continuance doesnt punish, state bars no

equipped to handle cases like this w/o more resources (hard to prove

o sometimes s get burned by atty bad decisions

V. JURY AND CRIMINAL TRIAL

Right to a Jury Trial

o Constitutional Basis

U.S. Const. Art. III 2 The trial of all c rimes, except in the case of impeachment shall be

by jury

6th Amnd. all criminal prosecutions accused shall enjoy the right to a speedy and public trial

by an impartial jury of the state and district wherein the crime shall have been committed

Duncan v. LA (1968)

right to jury trial is a fundamental right and is incorporated to state via 14 th Amnd.

o prevent govt oppression

o protect against unfounded criminal charges to eliminate enemies

o safeguard against over-zealous and/or biased and compliant judge

o opportunity to seek common-sense judgment of jury rather than judge

o reluctant to give so much power over citizens to judge(s)

o Purpose of Jury

Sparf v. U.S. (1895) jury CANT nullify the law (ignore judges instructions and decide

based on their opinion of what law should be

ct responsibility to declare law; jury applies it


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U.S. v. Thomas (1997) potential jurors who ID themselves as potential nullifiers can be

excluded

def. atty CANT argue or present evidence for a nullification defense

o When Right Attaches

Duncan v. LA n/a to petty crimes

Baldwin v. NY(1970) line NOT between felonies and misdemeanors

Lewis v. U.S. (1996) strong presumption against 6th Amnd. for crimes w/ max punishment

>6m in prison UNLESS it also involves additional statutory penalties so severe as to

indicate legislature considered offense serious

Patton v. U.S. (1965) NO constitutional right to insist on bench trial

Jury Composition

o Size

Ballew v. GA (1978) Less than 6-Member Jury Unconstitutional

obscenity case tried w/ 5 jurors

right to jury trial applies b/c punishment 6+m prison

jury of only five persons unconstitutional

o6 member jury ok

big enough to promote group deliberation

prevent outside intimidation

provide representative cross-section of community

o less than 6 members impairs jurys functions

memory problems

likely to overcome member bias

risk of convicting innocent person

inconsistency

hung juries b/c 1 minority view will not hold out as long as if there

were 2

ounanimity requirement doesnt solve problems doesnt show meaningful

group deliberation, memory, or truly represent community

ono significant state interest in reducing size


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o Unanimity

Apodaca v. OR(1972)

8 justices: 6th Amnd. must mean same thing in state and federal trials

5 justices: 6th Amdn. requires unanimity

o Trial Location

vicinage place where a crime is committed or a trial is held; the place from which jurors ar

to be drawn for trial; esp., the locale from which is entitled to have jurors selected

U.S. v. Rodriguez-Moreno (1999) charged w/ using firearm in crime of violence can

be tried in any district where crime of violence occurred even if gun wasnt used there

U.S. v. Cabrales (1998) charged w/ money laundering cant be tried in MO b/c even

though $$ came from illegal drug sale in MO, money laundering only occurred in FL

o Fair Cross-Section Requirement

reasons for fair cross-section requirement

guarding against exercise of arbitrary power

preserve public confidence in fairness of CJ system

promote civic responsibility

Lockhart v. McCree (1986) death qualification DOESNT violate fair cross-section

requirement

fair cross-section doesnt invalidate for-cause or peremptory challenges OR require

petit juries to reflect composition of society at large

groups defined only by shared opinions are not distinctive groups

o exclusion of people opposed to CP doesnt contravene any 3 purposes for fai

cross-section requirement:

excluded for legally valid reason little danger of arbitrarily skewing

jury

excluded for a reason w/i their control no appearance of unfairness

can serve as jurors in other cases no substantial deprivation of their

basic rights of citizenship

Duren v. MO (1979) Systematic Exclusion of Distinctive Group that is Unreasonable

and Unfair re: # of Persons in Community and Manifestly Inconsistent w/ Significan

State Interest Unconstitutional MO stat.: women automatically exempt from jury duty unless they request to be on it


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systematic exclusion of women that results in jury venires averaging less than 15%

female violates fair cross-section requirement

omust show

excluded group is distinctive

Taylorwomen are distinctive

representation of group is unfair and unreasonable re: # ofpersons in community

50%+ population is women but only 14% women in venire

underrepresentation due to systematic exclusion in jury selection

process

manifestly inconsistent w/ significant state interest

domestic responsibilities insufficient justification for

disproportionate exclusion

Strauder v. WV(1800) trial of black by jury from which blacks have been purposefully

excluded violates EP

Swain v. AL States purposefully or deliberate exclusion of AA from juries based on race

violates EP

Batson v. KY(1986)

uses peremptory challenges to strike all 4 AA jurors in venire no AA in petit jur

right to be tried by jury selected by non-discriminatory means:

oNOT excluded based on race or false assumption that members of race are

categorically unqualified as jurors

o undermine public confidence in system

for successful claim of discriminatory selection of venire must show

o member of racial group + has removed jurors of that particular race

o peremptory strikes raise inference of discrimination 1st strike (even if

racially-motivated) free no pattern

o cant offer a race-neutral explanation for strike

dont need explanation sufficient for cause, but cant say just because

lower ct refused to consider claim despite timely objection remand


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concurrence (Marshall):get rid of peremptory challenges completely 1 or 2

peremptory challenges can get rid of certain types of jurors but can be explained

away

Miller-El v. Dretke (2005)

s decision to seek jury shuffle rearranging order in which members of venire

panel are seated and questioned when predominant number of AA are seated in front

decision to delay formal objection to s shuffle until after new racial composition isrevealed suspicion that seeking to exclude AA from jury and can be considered

to determine whether s proffered race-neutral explanation is pre-textual

J.E.B. v. AL ex rel. T.B. (1994) Batson Extended to Gender

using gender-based peremptory challenges violates EP

gender stereotypes insufficient justification for gender-based challenges

even w/ some truth must avoid superficial judgments that will stigmatize and

perpetuate historical patterns of discrimination

Powers v. Ohio (1991) has Standing to Object to Race-Based Exclusions ofJurors Via Peremptory Challenges Regardless of Whether and Jurors Same Race

under EP has standing to object to race-based exclusions of jurors through

peremptory challenges whether or not and excluded jurors share same race

orace-based peremptory challenges DONT survive EP just b/c all races

subject to equal treatment white jurors subject to same risk of

peremptory challenges based on race as all other jurors

Acceptable Race-Neutral Reasons for Race-Based Peremptory Challenges

Hernandez v. NYchallenges based on perceived problems w/ bilingual jurors

acceptance of official translation of Spanish testimony = race neutral

Purkett v. Elem (1995) striking black jurors based on appearance = race

neutral

o appropriate focus is on genuineness of proponents race-neutral motive rathe

than reasonableness

o Impartial Jury

Wainwright v. Witt(1985) prospective juror lacks impartiality only if s/he has views about a

case strong enough to prevent or substantially impair the performance of juror duties

impartiality NOT no knowledge of facts or opinions about case

Race


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Ham v. SC(1973) black civil rights activist must be able to question juro

about racial bias b/c race related to defense

Ristaino v. Ross (1976) Ham reflected an assessment of whether under all

circs. presented there was a constitutionally significant likelihood that, absent

questioning about racial prejudice, jurors would not be impartial

o simple assault, no racial lens required

Rosales Lopez v. U.S. (1986) inter-racial violent crime alone insufficient to

create const. need to question re: racial prejudice need more substantial indications of

likelihood of racial ethnic prejudice impacting jurors impartiality to be unconstitutional

Turner v. Murray(1986) capital accused of interracial crime is entitled to

have prospective jurors aware of victims race + questioned re: racial bias

Death Penalty

Witherspoon v. IL (1968) persons opposed to CP can be excluded on

impartiality grounds if it is unmistakably clear thato automatically vote against CP regardless of evidence

o attitude towards CP would prevent impartial decision re: guilt

Wainwright v. Witt(1985) standard: will jurors view prevent or substantially

impair performance of duties as a juror in accordance w/ instructions and oath?

o bias cant always be determined by Q&A

o must give deference to TC impression that juror would be unable to

faithfully and impartially apply law b/c 1sthand impression

Lockhart v. McCree (1986)

o : excluding jurors who would be impartial re: guilt/innocence but

opposed to CP violates right to impartial jury

o impossible to exactly balance impartiality const. presumption that jury

selected from fair cross-x is impartial regardless of actual mix of viewpoints as

long as jurors can conscientiously and properly carry out sworn duty to apply la

to facts

Influences on Jury

o Publicity

Mu-Min v. VA (1991)

convicted murderer escapes from work detail and murders someone else

case sensationalized


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o confession = conscious guilt

o could have been executed for prior crime except CP was illegal

o prior criminal history

o killed then ate lunch

o future danger to society

2/3 prospective jurors heard something about case only 1 admits cant be

impartial all selected jurors didnt claim formed opinion or bias/prejudice towards

TCs refusal to ? prospective jurors re: specific contents of news reports did

NOT violate 6th Amnd right to impartial jury or 14th Amnd DP

oNO Const. right to ? re: content of what each juror has read/heard/seen

before trial

oTC asked 4 questions about pretrial publicitys effect on them THEN additiona

voir dire in panels of 4 each time individual juror indicated had knowledge recase from outside sources TC asked whether formed an opinion

o although ?s re: content of publicity would be helpful to assess impartiality

TCs failure to ask ? must render s trial fundamentally unfair

omedia is too prevalent + too hard to find people that havent heard anything

oTC are best able to judge the severity and prejudicial effect of pre-trial publicit

Patton v. Yount(1984) relevant question isnt whether community remembered the case

from 1st trial, but whether jurors @ trial had such fixed opinions that they couldnt impartialljudge s guilt

o Im proper Prosecutorial Argument

Darden v. Wainwright(1986) Did Improper Arguments So Infect Trial as to Make it

Unfair to the Point of Denying DP?

furniture store robbery, killed 1 owner, SA another, shot kid who came to help

s closing argument: calling animal, wish victim had shot in the head and in

the face (graphic description), wish was killed, CP only way to prevent futurecrimes

s statement DIDNT deprive right to fair trial

o only question: did comments so infect the trial to make it unfair to the point of

denying DP? NOPE


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o although improper to say CP only way to prevent future crime and re: animal

b/c some comments in response to s closing arguments + harmless error

(?) b/c

significant evidence of guilt

didnt manipulate or misstate evidence

jury instruction

s rebuttal closing argument repaired damage

Berger v. U.S. (1935) has equal duty to refrain from improper methods calculated to

produce a wrongful conviction as it is to use every legitimate means to bring about a just

one

Donnelly v. DeChristoforo (1974)

closing argument: I honestly and sincerely believe that there is no doubt in this

case

conviction affirmed b/c TC quickly told jury statements not evidence + overall

impact was insufficient for DP violation

U.S. v. Young(1985)

closing argument: intentionally w/h exculpatory evidence + no one here believes

intended to defraud victim

closing argument offered personal opinions about guilt

conviction affirmed s statement in response to s + no plain error requiring ct overlook fact that didnt object

Caldwell v. MS(1985)

capital sentencing phase : have mercy; : jurys decision for CP isnt final

oNOT invited response didnt have much to do w/ mercy plea

oviolate 8th Amnd. by suggesting that ultimate punishment decision wasnt w/

jury

s Rightso [Not to] Testify

Griffin v. CA (1965) cant comment on not testifying punishing for exercising

Const. right

Carter v. KY(1981) TC must instruct jury NOT to draw any adverse inferences from s

silence if requested


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Doyle v. OH CANT use silence afterMiranda warnings

Mitchell v. U.S. use of s silence @ sentencing unconstitutional

o Physical Presence

IL v. Allen (1970) TC Has Discretion to Deal w/ Disruptive and Defiant when was disruptive and defiant TC has substantial discretion to deal

obind and gagging

ocontempt

oremoving until agrees to behave properly

Holbrook v. Flynn (1986) NO DP violation for requiring to be surrounded by plain-

clothes numerous police in ct.

KY v. Stincer(1987) Only Has Right to Be Present at Stages of CriminalProceeding in which it is Crucial for to be Present

NO right to be present @ CSA survivors competency hearing

oNOT giving substantive testimony

o didnt show his presence would have been useful

Portuondo v. Agard(2000) CAN Comment on Testifying s Ability to Hear AllWitness Testimony and Possibly Tailor Testimony

testifies

closing argument:

heard all evidence before testifying and hadopportunity to tailor testimony

comment didnt violate 6th Amnd. right to be present @ trial

o no reason to treat testifying s differently than other witnesses

witnesss ability to hear prior testimony and tailor his/her testimony

threatens integrity of trial whether witness is just witness or testifying

o cant sequester appropriate to comment on presence during other

testimony to help jury consider credibility

According Griffin + Agard?

broad reading no burden on invoking right to testify, regardless of reason

narrow reading wont burden invocation when there could be guilty or innocent

reason


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o innocent reason dont want to expose prior convictions, dont want to be

tricked, serious public speaking anxiety

Scalia says Griffin is dumb but doesAgardweaken Griffin enough to allow to

comment on silence?

o problem determining guilty or innocent reasons

o dont know potential groundwork for pushing towards limiting to only innocent

reasons

o To Obtain Evidence

AZ v. Youngblood(1988) CSA evidence either not properly preserved or too small for testin

must show bad faith of police in failing to preserve potentially useful evidence

otherwise NO DP violation

o limit polices responsibility to preserve evidence to reasonable bounds

o limits cases only where justice requires

o Confrontation

Crawford v. Washington (2004)

husband and wife confront victim over rape allegation husband stabs victim

claiming self-defense during interrogation wife: victim didnt have weapon

TC admits wifes statement to police b/c sufficient indicia of reliability convicted

criminal case + statement used against + witness not on stand/unavailable CCissue

testimonial out of court statements by witnesses are INADMISSIBLE under CC

unless witnesses are (1) unavailable and (2) had prior opportunity to cross-x,

regardless of whether ct thinks theyre reliable

o historical CC adopted to keep ex parte examinations out of evidence [Sir

Walter Raleigh]

oRoberts is unpredictable and inconsistent

owifes statement violates CC inadmissible reversed

o leave definition of testimonial for another day but minimally includes

preliminary hearing testimony

grand jury testimony

testimony at previous trial


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custodial police interrogations

Davis v. Washington (2006)

2 DV s challenge testimony to police/911 as testimonial statements violating CC

oWashington police testify about responding to 911 call for DV + admit 911

tape of victim IDing as attackerconvicted

oHammon police respond to DV + testify about what victim told them and her

affidavit for battery convicted

CC applies only to testimonial statements

o testimony a solemn declaration or affirmation made for the purpose of

establishing or proving some fact

primary purpose test

o non-testimonial statements (NOT subject to CC) when made in the course o

a police interrogation under circumstances objectively indicating that theprimary purpose of the interrogation is to enable police assistance to meet a

ongoing emergency

911 call = non-testimonial NO CC violation admissible

affirmed

describe events as occurring

frantic, present tense, immediate emergency info elicited

intended to help resolve emergency, NOT to learn about wha

happened in the past

o testimonial statements (subject to CC) when the circumstances objectively

indicate that there is no ongoing emergency and the primary purpose of the

interrogation is to establish or prove past events potentially relevant to later

criminal prosecution

interrogation = testimonial CC violation inadmissible

remanded

statements made during interrogation into criminal conduc

to elicit what HAD happened

no immediate emergency: no circumstantial evidence of

current fight and victim stated things were fine

statements obtained under circumstances very similar to

witness testifying on direct-x

Gray v. MD (1998)


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indicted for murder joint trial

co s confession admitted but TC required s name redacted or say deleted

when introduced/testified about; Q: after co confessed arrested A: yes;

testified denying participation; co didnt testify

precedent

o

Bruton

6

th

Amnd. prohibits introduction of confession in joint trial of non-testifying co w/ limiting instruction that jury not to consider as evidence of

s guilt

oRichardson v. Marsh co confession admissible in joint trial w/

appropriate limiting instruction and redacted to eliminate s name and any

reference to s existence

Bruton rule prohibiting introduction during joint trial of confession of nontestifying

codefendant which names defendant as perpetrator extends also to redacted

confessions in which name of defendant is replaced with obvious indication of

deletion, such as blank space, word deleted, or similar symbol

o redactions that simply replace names w/ obvious indication of alteration close

resemble Brutonviolate 6th Amnd

o obvious deletion may make deletion stand our more give confession more

importance

oredacted confession facially incriminating confessions language and PO

testimony about it obvious redaction points to

VI. RIGHT TO COUNSEL

The Constitutional Requirements

o 6th Amendment: shall enjoy a right to have counsel to assist in defense

o Right to Assistance of Counsel at Trial

Powell v. AL (1932) Special Circumstances Rule

DP requires counsel in capital cases when in capable of adequately making ow

defense b/c ignorance, feeble-mindedness, illiteracy, etc.

must provide counsel early enough to make a difference

Hamilton v. AL (1961) General Right to Counsel in ALL Capital Cases

Johnson v. Zerbst(1938) Extends Powellto Non-Capital Federal Criminal

Prosecutions


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realistic recognition that average doesnt have professional legal skill to protect

self, esp. w/ professional prosecutor

Betts v. Brady(1942) Must Have Special Circs. to Get Appted. Counsel AbsenceWould be Offensive to Common Ideas of Fairness

OVERRULED BY GIDEON V. WAINWRIGHT

non-capital cases only appt counsel when absence would be offensive to common

ideas of fairness

Gideon v. Wainwright(1963) Fundamental Right To Counsel Applies to States

b&e w/ intent to commit misdm. (non-violent, no racial issues) deny request for

counsel self represented convicted

6th Amnd incorporated via 14th Amnd to states indigent in state ct. has right to

counsel

o right to counsel = fundamental right

o w/o counsel cant have fair trial

professional s + s who can afford hire attys counsel is NOT a

luxury, its a necessity

Argersinger v. Hamlin (1972) Absent K/I Waiver, NO ONE Can be Imprisoned for anCrime, Regardless of Classification Unless Represented by Counsel

Absent knowing and intelligent waiver, no person may be imprisoned for any offense

whether classified as petty, misdemeanor or felony, unless he was represented by

counsel at his trial

o non-felonies tried w/o jury arent necessarily less complicated counsel still ma

be needed

Scott v. IL (1979) Actual Punishment v. Authorized Punishment to Determine Right to

Counsel

convicted theft fined $50 after bench trial; max penalty was $500 fine and/or 1y jail

6th and 14th Amnd require only that NO indigent criminal be sentenced to a term

of imprisonment unless the state has afforded him the right to assistance ofappointed counsel in his defense

o right to counsel based on actual punishment

ono jail no right to counsel

dissent authorized punishment theory better

o focus on potential penalty


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o better predictor of stigma resulting from conviction

o always used by S.Ct.

o no administration problems know before trial whether counsel required

o constitutional rights cant be based on state budget

Nichols v. U.S. (1994) Validly Uncounseled Misdemeanor CAN Be Used to EnhancPunishment for Subsequent Conviction

felony cases in contrast to misd. charges Const. requires indigent be offered

appointed counsel unless that right has been intelligently and competently waived

uncounseled misdemeanor conviction, valid due to absence of imposition of prison

term, CAN be used to enhance punishment at subsequent conviction

AL v. Shelton (2002)

unrepresented misdemeanor assault conviction max 1y punishment suspended

prison sentence for 2y unsupervised probation

6th Amnd prohibits activation of a suspended sentence upon s probation violatio

incarceration for uncounseled underlying offense deprives s liberty

o actual imprisonment rule

oNO person can be imprisoned for any uncounseled offense

o other states can pay for it, so can AL

NO suspended sentence that may end up in actual deprivation of person's libertyw/o representation in prosecution for crime charged

o Counsel on Appeal and Other Forms of Assistance

Griffin v. CA State CANT structure appeal process so that it denies an effective review

to indigents while permitting it to those w/ $$$

Douglas v. CAState must provide counsel to indigent on appeal regardless of TCs

view that counsel would be useful/useless

Ross v. Moffitt(1974) State NOT Required to Provide Indigent s Counsel forDiscretionary Appeals

represented @ trial and immediate appeal as of right counsel required for

discretionary appeals to St. S.Ct. or U.S. S.Ct.?

DP DOESNT require state to provide counsel for discretionary appeal to St. S.Ct.

o differences between trial and appeal: initiates appeal + s atty attacks

rather than protects


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EP DOESNT require state to provide free counsel on discretionary appeal to St.

S.Ct. or U.S. S.Ct. where:

o would have, at very least, a trial transcript, a brief on his behalf in CoA

setting forth his claims of error, and usually CoA opinion

oS.Ct.s standard for granting or denying review was not whether there had

been a correct adjudication of guilt

practice only unfair if indigents are singled out and denied meaningful access to

appeals

Evitts v. Lucey(1985)right to counsel includes right to have effective counsel;

unrepresented s on appeal face same problems as @ trial

U.S. v. McCollom (1976) statute providing free transcript to indigent s for habeas

corpus only if TC certifies claim isnt frivolous and transcript is necessary constitutional

could have appealed directly and got free transcript automatically chose not to too

bad

Williams v. IL (1970) statute CANT increase max jail sentence if failed to pay fine

when didnt pay b/c indigent

Tate v. Short(1971) statute CANT convert fine into jail where unable to pay fine

basically would be punishing people who couldnt pay fine w/ jail but people who

could pay convicted of same sentence only got fine

Bearden v. GA (1983) CANT Deprive Probationer of Freedom Based Solely onInability to Pay Fine at No Fault of s

in probation revocation proceedings ct must determine reasons for failure to pay fine

o fail w/o making bona fide efforts to legally obtain $$$ revoke probation

o fail after making sufficient efforts to legally obtain $$$ consider alternative

punishments

only AFTER alt. measures insufficient to meet state interests

imprison

Ake v. OK(1985) when sanity @ time of crime is a significant factor in trial, state must

provide competent psych for eval, prep, and present defense + must have access to

psych expertise if future dangerousness is relevant as an aggravating factor in capital

sentencing

o Critical Stage

Coleman v. AL (1970) right to counsel applies at all critical stages of a criminal

prosecution


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criminal prosecution begins when adversary judicial proceedings begin (initial

appearance or any formal charging process) final sentence determination by TC

critical stage = any formal interaction between and that could adversely effect

s ability to effectively exercise legal rights and any informal proceeding that is

designed or likely to elicit incriminating info

opreliminary hearings

oinitial appearance

oarraignment

owarrant execution

opost-sentencing

oparole revocation (unless special circs. timely and colorable claim that hasn

committed violation or substantial reasons justify or mitigate violation makin

revocation inappropriate)

ohabeas corpus/collateral attack proceedings

right to be heard @ prison disciplinary hearings adversely effecting liberty interest, but no

necessarily counsel

Effective Assistance of Counsel

o Meaning of Effective Assistance

McMann v. Richardson if right to counsel is guaranteed must be competent counsel

prohibited interferences w/ atty-client relationship

conference during over night recess between direct and cross-x

testifying or when

closing statement in non-jury trial

old standard: mockery of justice ineffective only if trial reduced to farce/charade

new standard: consul must possess and exercise legal competence customarily found in JD

legitimization of plea bargaining

restricted habeas

Strickland v. Washington (1984) Successful Ineffective Assistance of CounselRequires: Deficient Performance AND Prejudice

against counsels advice confessed to all charges and waived right to advisory jur

in capital sentencing phase


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counsel decided not to present evidence re: background, emotional state, character,

excluded rap sheet, doesnt request presentence report which would show more

bad evidence, didnt cross-x medical experts

defective counsel to reverse conviction or death sentence must show:

o deficient performance in an objective sense AND

o prejudice resulting from deficient representation sufficient to deny fair tri

must show reasonable probability that but for counsels errors result

would have been different

challenge death sentence: reasonable probability that absent

errors sentence would have determined balance of aggravating

factors and mitigating factors wouldnt warrant CP

challenge conviction: reasonable probability that absent errors

factfinder would have had reasonable doubt re: guilt

effective counsel reasonable strategic decisions based on info and resources

available

o aggravating circs.

o omitted evidence wouldnt change result and actually may have been more

harmful

no showing of prejudice

prejudice presumed when

actual or constructive denial of counsel

certain kinds of state interference

counsel failed to function as adversary (U.S. v. Cronic)

o Bell v. Cone s counsel fails to call witnesses and waives closing

argument @ sentencing hearing doesnt fail as an adversary

Cronicclaims rare

counsel conflict of interest

Williams v. Taylor

counsel ineffective when

o didnt investigate abusive past based on error in interpreting law


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o didnt intro evidence borderline MR, prior cooperation w/ police, characte

testimony from prison officials: least likely to be violent or dangerous, went

to school and thrived in structured environment

prejudice

o fact that: turned self in and cooperated w/ police, felt remorse, abused

as child, borderline MR, violent behavior result of compulsive reaction could

have influenced jurys decision re: moral culpability

o mitigating evidence unrelated to dangerousness may affect jurys

sentencing even w/o undermining or rebutting s case

Roe v. Fores-Ortega (2000)

counsel ineffective if doesnt consult w/ client when reason to think

o rational would want to appeal

o

this particular

reasonably demonstrated to counsel interest inappealing

when failure to consult deprives of right to appeal prejudice presumed if

shows reasonable probability that but for counsels deficient failure to consult re:

appeal he would have timely appealed

Hill v. Lockhart(1985) to satisfy prejudice, must show that there is reasonable

probability that, but for counsels errors, he would NOT have pleaded guilty and would hav

instead insisted on going to trial

Nix v. Whiteside (1986)

reasonable for atty to dissuade/threaten consequences for client for perjury

NO prejudice no claim that result would have been different if lied under oaht

o if conflict between and counsels ethical obligations = prejudice all

convictions would be suspect if sought to get acquitted by illegal means

Glover v. U.S.prejudice when an erroneous sentencing calculation would have been

corrected on appeal if appeal filed on time

Rompilla v. Beard(2005)

ineffective assistance counsel failure to examine file on s prior conviction

for rape and assault at sentencing phase of capital murder trial when

o knew seeking CP by proving had a significant history of felony

convictions indicating the use or threat of violence, an aggravator under stat

law, and, further,


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o knew that would attempt to establish this history by proving s prior

conviction for rape and assault, and would emphasize his violent character

by introducing a transcript of the rape victim's testimony given in the earlier

trial

prejudice @ sentencing phase in capital murder trial counsels failure to look

at file containing potential mitigating factors, incl. info about childhood (poverty) and

mental health (schizophrenia and other disorders, despite 9y school functioning @

3rd grade level), that was very different from anything else heard

Implications of Right to Counsel

o Right to Proceed Pro Se

Faretta v. CA (1975) State CANT Force Counsel on When Insists onDefending Self;Constitutional Right to Conduct Own Defense

preliminarily allowed to defend selfTC questioned about hearsay and juror

challenged and decided didnt make K/I waiverappt public defender

state CANT force representation when doesnt want it

oCL rule: no crim can have counsel forced upon him against will

o if doesnt want counsel NOT going to be helpful and possibly harmful

to make KIV waiver should know risks and dangers of self-representation:

o clear waiver

o

literate

o competent

o voluntary

o understand risks

o knew some rules still applied

o dont care didnt know legal rules

Martinez v. CoA of CA (2000) NO right to bepro se on appeal

interest in preserving integrity and efficiency of legal system v. s interest in

self-representation

People v. Reason

standard to waive counsel:


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o has sufficient present ability to consult w/ atty w/ reasonable degree of

rational understanding and a rational and factual understanding of

proceedings against him

oKIV waiver

McKaskle v. Wiggins (1984) Occasional Unsolicited Assistance by Standby Counsedoes NOT violate 6th Amnd. as long as Retains Control over his Defense

couldnt decide whether wanted counsel ct. appt standby counsel

mere occasionally unsolicited assistance by standby counsel DOESNT violate 6th

Amnd. as long as retains control over his defense

right of self-representation is not violated by standby counsel unless:

o substantially interferes w/ s significant tactial decisions

o assumes control over examination of witnesses

o speaks for on material issues against wishes

o otherwise destroys jurys perception that is representing self

Anders v. CA if lawyer sees no appealable issues, file a brief that says: indicate review

record etc. and don't believe meritorious grounds for appeal and request to be relieved as

counsel, ID issues that might be arguable on appeal (non-frivolous) to assist appellate

court

VII. SENTENCING

Introduction

o mandatory sentencing statutorily specified penalty that automatically follows a

conviction for the offense, often with a minimum mandatory term.

aka determinate sentencing; fixed sentencing

o indeterminate sentencing sentencing that is left up to the court, with few or very

flexible guidelines

aka discretionary sentencing

o presumptive sentencing a statutory scheme that prescribes a sentence or range of

sentences for an offense but allows the court some flexibility in atypical cases

o Furman v. GACP w/o guidelines for decision making unconstitutional

o Gregg v. GA statutory guided decision for CP constitutional

o Lockett v. Ohio ALL relevant mitigating circs. must be considered by jury


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o McClesky v. Kemp racial discrepancies re: CP inevitable result of necessary

discretion NOT systematic defect

o Considerations

cant sentence based on prior felony convictions that violated 6 th Amnd (counsel)

can sentence based on uncounseled misdemeanor conviction when no 6th Amnd right to

appt counsel

perjury @ trial admissible +doesnt unconstitutionally burden s right to testify

cant consider s choice not to testify at sentencing, even if plead guilty

can consider racial motivation for crime BUT NOT abstract beliefs unless directly

relevant

cant sentence on retrial b/c appealed TC must list legit specific reasons: conduc

after sentencing, convictions for charges pending @ sentencing

limitations n/a to new trial for misdemeanor, 2nd jury trial w/ jury sentence,resentencing judge after jury sentence, re-sentencing after vacated guilty plea

can victim impact statements as long as not to prejudicial to violate FRE or DP, but

CANT contain opinion that should get CP

o Substantive Limits

Ewing v. CA (2003)

3 strikes law long crim. history of theft, battery, drug possession currently

convicted felony grand theft for stealing $1200 golf clubs sentenced 25-life

precedent

oRummle v. Estelle constitutional to sentence 3x offender to life w/o parole

fed. cts should be reluctant to review legislatively mandated

sentences successful challenges should be rare

oHutto v. Davis constitutional sentence to 2 20y consecutive sentences for

possessing and distributing pot

o Solem v. Helm unconstitutional to sentence life w/o parole for 7 th

nonviolent felony

3 factors for proportionality

gravity of offense vs. harshness of penalty

sentences in same JD

sentences for same crime in other JDs


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oHarmelin v. MI life w/o parole constitutional for possessing 672g cocaine

proportionality only considered for CP

4 principles

primacy of legislature

legit peneological schemes

nature of federal system

objective factors

8th Amdn. doesnt require strict proportionality ONLY no grossly

disproportionate

NOT grossly proportionate constitutional when justified by states public safety

interest in incapacitating and deterring recidivist felons and amply supported by

long and serious criminal record

o reflects rational legislative judgment entitled to deference

o reasonable basis to believe increased sentences advance CJ goals

U.S. v. Bajakajian (1998)

convicted of carrying $375K cash out of country w/o reporting forfeit all monies

unconstitutional sentence gravity of the crime v. punishment is grossly

disproportionate

o underlying conduct permitted

o no other criminal involvement

o no articulable correlation to any govt injury

Applicability of Rules of Constitutional Criminal Procedure

o NOT all rights apply to both guilt-innocence phase and discretionary sentencing phase

right to counsel

confrontation

o Williams v. NY(1949) Sentencing Judge NOT Limited to Info Presented at Tria

convicted 1std murder jury recommends life TC: death based on info from probation

office that wasnt subject to cross-x, no standard of proof: prior [uncharged, unconvicted]

burglaries, morbid sexuality, menace to society, personal belief of guilt


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sentencing complies w/ DP requirements b/c sentencing judge has wide discretion in

sources and types of info used to assist in determining kind and extent of punishment w/i

legal limits

sentencing judges NOT limited to info presented @ trial

judge considered evidence presented @ trial and additional information from

unconfronted witnesses

different evidentiary standards for guilt and sentencing

o guilt limited evidence to not waste time

o sentencing need to have all info possible to have punishment fit , not just

crime

o Gardiner v. FL (1977) modern CP sentencing must be guided by statutory

aggravating circumstances DP violation when sentence was partially based on info had

no opportunity to explain or deny

o In re: Winship (1970) DP protects against conviction except upon proof BRD of

every fact necessary to constitute crime with which he is charged

o Mullaney v. Wilbur(1975) CANT have burden to disprove an element of the

crime by calling it affirmative defense

o Patterson v. NY(1977) a defense that negates blameworthy but doesn't negate an

element of the crime isaffirmative defense and has burden of proof

o McMillan v. PA (1986) Sentencing Factor Only Needs to be Proved byPreponderance of the Evidence

4 consolidated cases: aggravated assault, voluntary manslaughter, robbery w/ gun TC

rejected state mandatory minimum sentence rule if judge finds (PoE) visibly possessed

gun @ time of crime

NO DP violation visible possession of firearm doesnt need to be proved by at least cle

and convincing evidence before it can be used to impose mandatory minimum sentencing

under stat. when it is considered to be a sentencing factor rather than an element

PoE standard sufficient

legislative intent to be sentencing factor

doesnt change definition of any offense or add element just states exact weight

having gun during crime should be given in sentencing

o Walton v. AZ(1990) AZ statute that gives TC responsibility to find aggravating

circumstances for CP constitutional

OVERRULED BYAPPRENDI


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6th Amnd doesnt require specific findings to support CP to be made by jury

aggravating circs. not separate offense or penalty GUIDE

[not] finding aggravating circ doesnt convict or acquit

o Mandatory Sentencing and Const.

Mistretta v. U.S. (1989) Sentencing Reform Act constitutional b/c although

Congress CANT generally delegate its legislative power to another Branch, thenondelegation doctrine does not prevent Congress from obtaining assistance from

coordinate Branches

Witte v. U.S. (1995) can consider uncharged conduct for enhanced sentencing

and later prosecute for same conduct

U.S. v. Watts (1997) can use previous conduct for which has been acquitted t

enhance sentence

Edwards v. U.S. (1998) fed. judges can sentence someone convicted of taking

part in a drug conspiracy based on a finding that two illegal drugs were involved, even

the jury might have convicted based on one drug

regardless of jurys actual or assumed belief about conspiracy TC required to

determine whether controlled substances at issue and how much consisted o

cocaine, crack, or both

Almendarez-Torrez v. U.S. (1998) factors in Fed. Sentencing Guidelines as a basis

for increasing sentence (esp. prior convictions) element of a new crime

Jones v.U.S. (1999) Any Fact (Except Prior Conviction) that Max PenaltyMust be Indicted, Submitted to Jury, and Proved BRD

DP and 6th Amnd require any fact (except prior conviction) that max penalty to be

oindicted

osubmitted to jury

oproved BRD

Apprendi v. NJ(2000) Entitled to Pre-Trial Notice, Jury Determination BRof ALL Elements of Crime

jury convicted possessing gun (stat. max. 10y) judge determined hate crime (max.

20y) sentenced to 12y

entitled to jury determination that he is guilty of every element of crime with which

he is charged, beyond reasonable doubt

ojury has to find hate crime enhancement, NOT judicial fact-finding


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o question does the required finding punishment beyond that authorized by

jurys guilty verdict?

Ring v. AZ(2002) aggravating circs. = elements of crime must be found BRD

by jury

unconstitutional when judge imposes a sentence stat. max w/o challenged fact

finding not submitted to jury

Harris v. U.S. (2002) McMillan Re-Affirmed

Apprendi:max. sentence =element

McMillan: mandatory minimum (but not beyond max) element

together: facts setting up outer limits of sentence and the judicial power to impose it

are elements; w/i sentencing range political system may channel judicial discretion

Blakely v. WA (2004) CANT Sentence Stat. Max Based on Disputed FactNot Submitted to Jury

plea agreement 2ndd kidnapping max 10y St. sentencing guideline = 49-53m

unless substantial and compelling reason justifying exceptional sentence victim

testimony judge sentences 90m

invalid sentence when sentenced to stat. max b/c of a disputed fact founder

would require to prove that fact through jury

owhether judges authority to impose an enhanced sentence depends on a

specified fact (Apprendi), one of several specified facts (Ring) or any

aggravating fact (here) jurys verdict alone doesnt authorize that sentence judge only acquires authority upon finding some additional fact

ojury isnt in sufficient control as founders intended if they only make

preliminary determinations of some criminal behavior and judge decides res

U.S. v. Booker(2005) FSA Incompatible w/ 6th Amnd. Requirements Severed and Excised

2 consolidated drug cases:

o

#1 Guideline sentence of 210-260m

@ sentencing judge finds by PoEpossessed addl drugs increasing sentence to 360m-life received 360m

o #2 Guideline sentence of 78m @ sentencing judge finds by PoE actually

drug ring leader increasing max sentence to 16 years sentenced 78m

appeal

6th Amnd requirement that any fact except prior conviction needed to support a

sentence exceeding max authorized by facts in guilty plea or jury verdict must be

admitted by or proved to jury BRDincompatible w/ Federal Sentencing Act,


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which called for promulgation of federal sentencing guidelines and made such

guidelines mandatory

o guidelines same as Blakely both mandatory

o sentencing range judge power jury power judge decides upper limits of

sentencing based on facts not required to be brought to jury or proved by

more than preponderance

provisions that made guidelines mandatory and set standard of review severed an

excised

oCongress would have preferred severing rather than total invalidation

o appellate standard is reasonableness

Documents

Crim Pro II Outline