This action might not be possible to undo. Are you sure you want to continue?
DUE PROCESS a. Due Process and Incorporation i. Four main strands of reasoning for applying Due Process 1. Constitution: 5th incorporated via the 14th 2. Rule of Law: Hurtado court, general rather than specific, no ex post facto laws. 3. Accuracy- due process prohibits procedures that encourage inaccurate decisions: mob outside court and torture extracted confessions. 4. Fundamental Fairness- anything that shocks the judicial conscious violates due process like the rashim case (drug trafficking stomach pump). ii. Hurtado v. California (U.S. 1884). Harlan advocated a “jot for jot” position in incorporating bill of rights against the state. The rest of the court said that not all rights were part of due process and did not all bear incorporation iii. Duncan v. Louisiana (U.S. 1968)- Charged with simple battery. Appelant sought trial by jury, but Louisiana grants jury trials only in cases in which capital punishment or hard labor prison may be imposed. Not given tiral by jury. Dude saw his cousins talking to white boys, got out of the car and slapped a white boy on the elbow. Found guilty of simple battery by the trial judge. HELD: 14th amendment guaranteed a right of jury trial in all criminal cases- were they to be tried in federal court come within 6th amendment. Thus this case violated the constitution. REASONING: A right to jury trial is granted to criminal defendants in order to prevent oppression by the government i. Arguments for Incomplete Incorporation: States should be able to experiment/innovate; states Federalism generally have more experience in dealing with crime than the federal government; states have a higher interest in protecting their citizens from crime than the federal government Effectiveness Some Bill of Rights provisions aren’t The Bill of Rights is outdated- when written the criminal Outdated justice system was totally different. No police, prosecutors for example. No Unifying The BoR isn’t organized around any single unifying principle, many rights prevent accuracy (such as speedy principle trial and self incrimination). b. Due Process and Competency
i. Medina v. California (U.S. 1992)- HELD: Due process clause of 14th amendment prohibits prosecution of defendant not competent to stand trial; burden is on the defendant to prove incompetence by preponderance of the evidence. Plaintiff stole a gun from a pawnshop. He held up gas stations, and murdered three people. Three counts of first-degree murder. Counsel moved for competency hearing on the ground that he was unsure whether petitioner had the ability to participate in the criminal proceeding against him. Random Black Letter Law: There is a constitutional right to jury trial when the potential penalty is 6 months jail or more. Any less time is a petty offense. II. THE RIGHT TO COUNSEL: Generally speaking, right to counsel is guaranteed by the 6th Amendment and was slowly made applicable to the states via the 14th Amendment Due Process over a period of years through the following cases: Case Penalties Possible Counsel Actual Required? Powell (1932) Betts (1942) Gideon (1963) Argersinger (1972) Scott (1979) Nichols (1994) Shelton (1997) Death 8 yrs 5 yrs 90 days Fine Fine Plus 2 years 30 days Something Death Felony Felony 6 months 1 year Misdemeanor Felony 1 year 30 days yes No (overruled) yes yes No No Yes
a. In a way this line of cases places the cart before the horse because it examines the outcome of a case, albeit the potential outcome, prior to the case being tried in order to decide whether counsel must be assigned to indigent offenders. b. Underlying Theories of the Right: i. Advantage rich > poor ii. Lay defendants are unsophisticated iii. Fairness (State has lawyers) iv. Stakes are higher in Criminal cases v. Law is complex (hard) c. Appointed Counsel
i. Gideon v. Wainright (U.S. 1963 )- every felony crim. def. is entitled to counsel, state must appoint counsel for indigents. Stakes are high, need a level playing field, counsel is fundamental. Disavows a special circumstances test. Failing to provide counsel always provides a risk of inaccurate results. ii. Alabama v. Shelton (U.S. 2002)- You cannot issue a suspended sentence without right to counsel. A suspended sentence means actual imprisonment could be triggered at any point. The hearing over whether parole was violated is not determinative of guilt or innocence but rather whether the defendant has violated his parole. A suspended sentence is considered an actual term of imprisonment and thus defendant must have counsel provided. d. Scope of the Right i. Rothgery v. Gillespie (U.S. 2008)- Right to counsel begins at the preliminary hearing (once defendant has an initial hearing and hears about the charges against him as well as has his liberty in jeopardy). Whether you must have counsel at the preliminary hearing though depends on whether this initial hearing is a critical stage. Alito concur suggested critical stages are stages critical to determination of guilt or innocence at trial, so under his standard even a bond hearing would not require counsel ii. Halbert v. Michigan (U.S. 2005)- (marks the furthest the scope extends…unclear where that is) Depends on Douglass and Ross. Prior to Halbert there seemed to be a bright line rule that counsel was a right on appeals of right but not on discretionary appeals. Halbert screwed that up. 1. Douglass- said that there was a constitutional right to appointed counsel on a direct appeal of right. 2. Ross- court drew a distinction between appeals of right and discretionary appeals—discretionary appeals don’t require right to counsel. 3. Scott says: The 6th Amendment right to counsel ends at sentencing. However, if a state provides an appellate process, there is a right to counsel as Due Process and maybe Equal Protection. e. Ineffective Assistance of Counsel i. Strickland v. Washington (U.S. 1984)1. Scott says: This was an easy case to resolve—even though counsel did not pursue every lead, there was not a good chance that the mitigating evidence counsel may have turned up would have helped. Additionally, counsel had a strategy that involved showing the defendant owned up to his actions and
depended on the mercy of the court. You can’t question a strategy. ii. Strickland Two-Prong Test for Ineffective Assistance 1. Deficient Performance: Performance which falls below an objective standard of reasonableness based upon (maybe local) professional norms. There is a presumption of competence and the defendant bears the burden of overcoming that presumption. 2. Prejudice resulting from Deficient Performance: Defendant must show a reasonable probability that but for counsel’s unprofessional error(s), the result of the proceeding would have been different. a. Reasonable probability means enough to undermine confidence in the result f. Performance and Prejudice i. Rompilla v. Beard (U.S. 2005)- very narrow holding, specifically the defender failed to investigate a case file which contained clues to mitigating factors. Holding is ambiguous as to unreasonable to fail to look in file or failure to find document. Holding: when a capital defendants family members and the defendant himself have suggested no mitigating evidence is available, his lawyer is bound to make reasonable efforts to obtain and review material that he knows the prosecution will rely on as aggravating the sentencing. THE LAWYERS WERE DEFICIENT IN FAILING TO EXAMINE THE COURT FILE ON ROMPILLAS PRIOR CONVICTION (file contained all sorts of useful mitigating data). ii. Wiggins v. Smith (U.S. 2003)- Appealed death sentence for 1st degree murder after Trial counsel failed to adequately investigate and present mitigating evidence such as Wiggins' personal and social history of severe physical abuse and sexual assault, and none of this information was presented at the penalty phase of trial, thus prejudicing Wiggins' defense. Held: Defense counsel must thoroughly investigate all potential mitigating factors when representing a capital client; if counsel fails to do so must display competent professional judgment providing sound reasons for limiting the investigation iii. Both Rompilla and Wiggins are about Counsel Performance. Now some cases about prejudice: 1. Prejudice a. Nix v. Whiteside (1986)- conviction when the jury would have found reasonable doubt b. Lochhart (1993)- death sentence when would have been life sentence
c. Hill (1985)- failure to appeal when would have filed an appeal d. Glover (2001)- guilty plea, would not have pleaded guil 2. Prejudice Presumed: In some types of cases prejudice is presumed. a. Actual or constructive denial (Gideon, Powell) b. “Complete Breakdown” of the adversary process (Cronic) c. Government interference with counsel’s performance (Geders) d. Actual conflict of interest (Cuyler v. Sullivan). g. Multiple Representation (need to add Cuyler v. Sullivan) i. Cuyler v. Sullivan (U.S. 1980) - Sullivan indicted along with 2 others for the 1st degree murder of two people. All 3 given separate trials, all three represented by the same 2 private attorneys. Sullivan was tried first and convicted (all circumstantial evidence from the janitor). He got life— presented no defense. The other two were tried and acquitted. Appealed claiming conflict of interest by his counsel (although no party objected at trial and the court held there was no duty for the trial court to inquire automatically). In order to establish a violation of the 6th amendment, defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyers performance. 1. No need to show prejudice, just must show that lawyer actively represented conflicting interests to the detriment of the client. 2. Holding: Must show an actual conflict of interest adversely affected his lawyers performance. h. Waiver AKA Pro Se: i. Faretta v. California (U.S. 1975)- Trial judge refused to allow pro se. Supreme Court said there is a constitutional right to pro se. Right to Pro Se is implicit in the constitution, all about dignity and autonomy. Violations of right to self representation result in AUTOMATIC REVERSAL. ii. Concerns: Ability, efficiency, spectacle, “Representing yourself is a form of judicial suicide and so the court has never extended it as far as they might go”
iii. Core of representation 2 kinds (from Wiggins) Dealing with standby counsel, standby may not interrupt. 1. Tactical 2. Perception iv. Pro Se considerations; problems with/ the state interest in having real counsel 1. Accuracy- legal knowledge, defenses available 2. Public Perception- unfair advantage for state 3. Judicial economy- risk of error, reversal, appeals, post-conviction. Efficiency during trial v. Spectacle- pro se counsel may turn the trial into a circus vi. Reasons for Pro Se: History, 6th Amendment right a. Adams precedent vii. Majority says that despite all the potential problems with pro se, it should still be allowed. Problems won’t all go away, but a trial judge may regulate these problems in various ways. viii. The proper remedy when you are denied pro se representation is a new trial. ix. Two other Pro Se Cases: 1. Wiggins- Standby counsel can’t be allowed to undermine the jury’s view that defendant is representing self. Defendant must be allowed to present their case in the manner they so choose without interference from standby. This is the case in which the standby exclaimed “Jesus Christ” aloud in open court. 2. Indiana v. Edwards- Def. is competent to stand trial but not competent to represent himself. State forced him to accept counsel. Court may refuse the right to pro se. The Def. was schizophrenic. There is a sliver of people who are competent to stand trial but aren’t able to represent self. BAIL AND PRETRIAL DETENTION
a. Initial Appearance: This is when bail is decided. There is not an established right to counsel at bail hearing because a bail hearing is not held to determine guilt or innocence. Are only establishing the likelihood that defendant will show up for trial. b. Cash bail: Put up x amount of dollars to guarantee c. Bail Bond: You give the company a percentage and they front the rest d. Unsecured Bail/Bond: No money changes hands you just promise to come back or pay x amount of $. e. Bail is made based on limited information related to danger to others and risk of flight. f. 8th Amend. can’t have bail that is too high (excessive) g. Bail Reform act of 1984- established procedures for pretrial detention unrelated to their appearance at trial, in other words safety of others—in Salerno SC upheld this. Regulatory rather than punitive detention, used in a number of other contexts (juveniles, mentally insane). h. Excessive Bail and the Bail Reform Act i. Stack v. Boyle (U.S. 1951) - 12 defendants, ended up with $50K bail each when the max penalty under the Smith Act was $10K fine. Claimed excessive bail. Smith Act case, hunting for communists. 1. Test for excessive bail: a figure higher than an amount calculated to assure defendant will stand trial. 2. Court here suggests that the only purpose of bail is to assure defendant stands trial. 3. Prosecution never presented any evidence that this was the appropriate level for bail. ii. Factors Court must consider in setting bail (Stack) 1. Severity of charges 2. Criminal Record, appearance record 3. Family ties 4. Citizenship 5. Ties to Community (home, etc) 6. Financial resources 7. Victim(s)/Community Safety iii. United States v. Salerno (U.S. 1987)- The RICO case in which there was no bond offered because they were afraid that the mobsters would harm people if they were allowed out on bail. Prof. Scott finds this case unsatisfying and the court just seems to take Congress’s word that it is engaging in regulatory instead of punitive detention. CHARGING DECISIONS- There are good and bad reasons to pursue prosecution in a certain case, but hard to tell what caused the
prosecutor to press charges. Usually the cases that need to be prosecuted are, because good and bad reasons apply. a. Prosecutorial Discretion i. Inmates of Attica v. Rockefeller (2nd Cir. Crt. App.1973)after riot, prisoners wanted prosecutor to charge guards and asked feds to compel prosecution. No dice. (basically you can’t review a decision not to prosecute). 1. Reasons Courts shouldn’t force prosecution:
Separation of powers: prosecutor is the executive, court is the judicial Delay/Efficiency: while court assessed charges No judicially manageable standard: Secrecy Chilling Effect ii. U.S. v. Armstrong (U.S. 1996) - claimed that defendants in crack distribution case were targeted because they were black. Wanted access to gov’t records so they could prove they were singled out based on racial discrimination. Evidence offered was that a clinic said just as many white crackheads as black. Need to show similarly situated individuals who were not charged (not clear how similar they must be, but this is clearly a high hurdle that the court has set). Did not show here, so discrimination claim failed. iii. Additional Charging decision cases: iv. Batchelder- (Decisions to prosecute are also very hard to challenge) Sentenced to 5 years, but there is another offense with exact elements with a max 2 years. Argued that he should have been charged with lower. Court says that prosecutor gets to pick. "Totally unlimited discretion to prosecutors is ok. No concern of due process or equal protection." As long as the gov’t has PC, the prosecutor usually can charge. v. McCleskey- used a Baldus study to show the black murderers were pursued more aggressively (higher charges) by prosecutors than white murderers Evidence of stark racial disparity alone can be enough to challenge a prosecutor’s decision to charge, but must be extreme (Yick Wo).(Need exceptionally clear proof of racial discrimination). vi. Hartman v. Moore- sued postal service for retaliating against him; he had software which read addresses on envelopes. Post office went with another person’s software and contacted US prosecutor to prosecute him cause they thought he was guilty of fraud. SO it clearly was malicious prosecution, but the guy did commit fraud.Proof of retaliation requires a lack of probable cause. vii. Class of 1 equal protection claim is possible under Olech and so there may be a selective prosecution claim (this has not yet been tested). b. Screening Procedures and Grand Juries: Once there is a decision to prosecute, the judiciary does step in and play more of a role. Grand Jury Cases: Defendants have very little opportunity to challenge the decisions of a Grand Jury. Basically you can’t challenge the Grand Jury.
Costello v. U.S. (U.S. 1961)- Mafia boss case in which they claimed that the Grand Jury Indictment was no good because the evidence presented was only hearsay and therefore the conviction should be overturned. (Basically the hearsay was 3 investigators, who were the only form of evidence presented to the Grand Jury). Court held that the Grand Jury process should not be meddled with, that it would delay trials, run counter to the historical tradition that originated in English courts and that fair trials and justice could still be served without review of the Grand Jury. (probable cause can be established exclusively through hearsay evidence. Grand Jury 23 citizens investigation power “Independent”, secret Ex parte No Counsel No defense evidence No compelled selfincrimination Live witnesses Rules of evidence relaxed No Jeopardy Indictments Preliminary Hearing Magistrate Judge Judicial branch Public adversary Right to appointed counsel Defense Evidence (usually) No compelled selfincrimination Live witnesses Rules of evidence relaxed No Jeopardy Information
ii. U.S. v. Williams (U.S. 1992) - False financial statement case, claim was that the government did not present exculpatory evidence to the Grand Jury. The Grand jury is not an adjudicative proceeding; a Grand Jury does not need to be informed of exculpatory evidence. iii. Bank of Nova Scotia- Rule violations by the prosecution like mistreating a witness or calling two witnesses as the same time during grand jury proceeding still are not enough to scrap the Grand Jury Indictment. If there is acquittal the claim is moot. If there is a conviction, the GJ was looking for probable cause—by the time the trial is over and there is a conviction we know that there was Probable cause. In other words, the error was harmless because guilt has been proven. c. Speedy Trial (Guaranteed by the 6th Amend.) i. Barker v. Wingo (U.S. 1972)- Lays out a multi-factor test for deciding if a trial is speedy or not. 1. Length of delay 2. Reason for delay
3. Assertion of right 4. Prejudice- Time can prejudice a defense…there is a presumption that time will do this, liberty restraint— when you’re locked up waiting for trial or out on bail even under travel restrictions, “cloud” hanging over one’s head—the possibility of being convicted ii. Lovasco- During government delay (18 months for no reason), two witnesses died iii. Doggett v. U.S. (U.S. 1992)- The coke distributor who went to Columbia before he was arrested and then the government tried to prosecute him 8.5 years later, after he returned to the states and lived under his own name, holding down a job and not breaking any laws. Court said no go, there was a presumption of prejudice to defense due to the time that had passed. No evidence he ever knew of the charges (although the agents came to his mother’s door). d. Venue: Although the trial is supposed to take place in the district in which the crime occurred (Visenage Clause), some offenses don’t fit this rule (kidnapping, travel through many states). i. U.S. v. Rodriguez-Moreno (U.S. 1999)- The TX coke deal in which some dude stole 30 kilos in a drug transaction in Houston, kidnapped a guy drove from texas to new jersey with the kidnapee. They moved to new york then to Maryland with kidnapee. Used a 357 magnum (purchased in Maryland) put to kidnapees head but didn’t shoot. Kidnapee escaped. Neighbors called the cops who seized the gun. He was tried in federal NJ, but argued that should only be tried in Maryland b/c that is the only place they could prove he used the gun. Held: NJ venue was appropriate because used the gun in relation to Kidnapping (a federal crime). ii. Pre-Trial Publicity (Two types) 1. Presumed prejudice: He doubts any presumptive prejudice claim will be successful again. So much media out there that no city in the country in which one source reaches 95% of households. 2. Actual prejudice: Irvin—8 jurors thought the guy was guilty even before trial. 3. Some Pre-trial publicity problems: a. Prejudice, hostility and sympathetic opinions b. Inadmissible evidence gets printed c. Inaccurate information in media d. Prejudicial (inaccurate) information 4. Some solutions for the above: a. Limiting instructions b. Questionnaires c. Wait to hold the trial
d. Change venue iii. Skilling v. U.S. (U.S. 2010) - The infamous CEO of Enron. Wanted to get trial shifted out of Houston b/c he thought trial wouldn’t be fair. Largest employer in town, affected everyone, all over the news. Court did not change venue, instead used a detailed questionnaire to pare down the field of 400-odd potential jurors. Also did voir dire with jurors. Skilling challenged the conviction, stating the venue was improper on a constitutional level (5th amend due process claim). Skilling made 2 due process args 1. Presumed prejudice because of level of publicity— court rejects this idea for the following reasons a. Not as prejudicial as other cases (smaller town, newspaper reached 95% of community, here coverage was pretty fair). b. Houston was a larger community 4.5 jurors c. Long time delay between collapse and trial d. Skilling was acquitted on some counts 2. Actual prejudice claim—these jurors couldn’t be impartial 3. Sotomayor dissent: didn’t like the voir dire, didn’t think it eliminated the risk of prejudice e. Joinder and Severance: It is cheaper to have just one trial, but may not want to join for the following reasons: i. Offense to offense prejudice (spill over evidence) ii. Jury confusion (the more questions jury must decide, the more complicated it becomes for the jury) iii. Cost savings not universal-depends on the case iv. Guilt by association v. Increased risk of counsel conflicts vi. Antagonistic defenses vii. FED R. CRIM. PRO. RULE 8 JOINDER OF OFFENSES AND DEFENDANTS 1. (A) OFFENSE a. SAME OR SIMILAR CHARACTER, b. SAME ACT OR TRANSACTION, c. COMMON SCHEME OR PLAN 2. (B) DEFENDANTS a. SAME ACT OR TRANSACTION OR SERIES viii. RULE 14 RELIEF FROM PREJUDICIAL JOINDER 1. PERMITS SEVERANCE IF “PREJUDICE” TO DEFENDANT ix. SCOTT ON THE RULES: 8 lets a lot in, 14 narrows that down (kinda the exception to rule 8) x. U.S. v. Hawkins (5th Cir. Crt. App. 1996)- Carjacking charge and then gets hit with a felon in possession of a
firearm (a different one than was used in the carjacking) charge for an incident 17 days later. Hawkins claims that the charges should not be joined. Court says that two charges were not of the same or similar character and joinder was improper. (There were actually three counts total). Conviction stands on the felon in possession charge, but the first two charges are overturned and sent back (gov’t can choose to try again). There is a strong assumption under R. 8 that joinder is permissible. But if charges are too logically dissimilar may not be xi. Zafiro v. U.S. (U.S. 1993)- 4 defendants: GF, BF, and two other men. Zafiro is the GF. Police found a lot of coke in her apt, pot and heroin and cash too. Everyone claims they don’t know anything and are innocent. Someone has to be lying. Zafiro objects to the joinder of defendants on a theory of antagonistic defenses mean that the jury must find one person guilty. Court declined to adopt a bright line rule that mutual antagonism is per se prejudicial (courts are not compelled to sever). Jury can find all, none or some of the defendants guilty. Severance only if court finds that: 1. serious risk that a specific trial right of the defendants would be compromised OR 2. prevent the jury from making a reliable judgment about guilt or innocence. DISCOVERY a. Defense Disclosure: As an introduction, recall from civ. Pro. that plaintiff can request discover (particular things). The idea was that trial shouldn’t be a poker game, but rather pre-trial there is a discovery of evidence to create a fair and accurate resolution. Although Civ. Rules changed, the crim rules didn’t change as drastically. Under the 5th Amend, no individual can be compelled to testify against himself. Some justifications for the privilege against self-incrimination: i. Pressure for a false confession ii. Risk of perjury (forcing someone to testify causes a moral bind for defendant). iii. State’s burden to prove guilt iv. Risk of unpersuasive slipups in testimony v. Conscience vi. Williams v. Florida (U.S. 1970)- Upheld rule requiring defense to release alibi witness ID; We decline to hold that the privilege against compulsory self incrimination guarantees the defendant a right to surprise the state with an alibi defense. vii. Taylor v. Illinois (U.S. 1988)- Discovery violations may be punished through the exclusion of testimony. In attempted
murder trial, defense counsel attempted to bring two additional witnesses that had not been disclosed in discovery—even though he knew he was going to call them. Trial court said no, because the trustworthiness of the testimony was now suspect. Held: Although the mistake that was committed was actually that of defendant’s attorney, when he failed to disclose the witness identity, all defendants cannot compel that all witnesses be heard, especially when their testimony is, at best, doubtful (Scott thinks striking- the court willing to let a def. be punished for attorney misconduct.) b. Prosecution Disclosure and Brady: Tremendous variety throughout the states; we will look at Federal Trial Rules here. There is a floor on what gov’t must disclose (Brady): Any material exculpatory evidence that would result in an unfair trial. However the prosecutor is the decider here, a strange inquiry, prosecutor has to decide if this is the kind of evidence that would alter the judgment. They have to imagine how the trial will go in this context i. Three Types of evidence that fall under disclosure rules for FEDERAL prosecutors: 1. Witness statements: Jenks Act (no witness list is required prior to trial). Reasons to protect witnesses: Witness safety, tampering and witness fear. 2. Police Reports: Are excluded from disclosure (justification is don’t want to reveal ongoing investigations—think protect CIs) 3. Expert Statements: ii. Brady v. Maryland (U.S. 1963)- Essentially a trial right as to what evidence must be disclosed by prosecution. Evidence must be favorable to the accused (exculpatory) and material to the guilt or punishment. iii. Kyles v. Whitley (U.S. 1995)- Principle Case on Brady v. Maryland Rule: 60 y/o lady shot in head in grocery store parking lot. Kyles arrested, after Beanie (gay guy who was with Kyle’s brother in-law) told police it was him and where to find the gun (Kyles’ apt.). Prosecution did not disclose 6 eyewitness statements, a phone call, interview and written statement from Beanie and some other stuff basically that would have created a case that Beanie did it instead. Held: Reversed because if the suppressed evidence had been disclosed, court cannot be confident that jury’s verdict would have been the same. 1. Consider suppressed evidence collectively, not piecemeal
2. Def. doesn’t have to prove that after the inculpatory evidence was admitted there wouldn’t be enough evidence left to convict 3. If there is a constitutional error there is no further need for harmless-error review. 4. To reverse: Need reasonable probability of a different result (Bagley Standard) had evidence not been suppressed—in other words a vote of no/low confidence in the trial outcome. 5. SCALIA DISSENT-takes a practical look at the evidence a. Says court here approached evidence piecemeal b. Height discrepancies in description no matter b/c hard to gauge height of seated person (in car) c. Hard for beanie to plant gun with 10-19 people in the apartment when he would have had to do it—would have to stash gun and rounds in two diff places, wasn’t wearing clothes that could conceal under. iv. Scott says: Kyles is a great example of material evidence under Brady 1. If but for the failure to disclose the evidence there is a reasonable probability that the outcome would have been different. 2. As the dissent shows, this is a hard standard to apply. Souter says that such a fuzzy standard is good because it may force prosecutors to over-disclose. A bright line rule may be easy to manipulate. 3. Exculpatory evidence is not just direct exculpates but also impeachment evidence that reduces the persuasive value of inculpatory evidence. 4. Evidence also includes evidence in police possession not just prosecutor evidence v. U.S. v. Ruiz (U.S. 2002)- 30 Kilos Pot in her luggage, Feds wanted to “fast track” her plea and asked her to sign a standard plea form that included a requirement that she waive the right to receive impeachment information relating to any informants or other witnesses, as well as information supporting any affirmative defense she raises if the case goes to trial. She didn’t agree; pled instead and asked the judge to give her the sentence the prosecutor would have offered. Trial court didn’t. 9th Circuit vacated the sentence. Supreme Court said Prosecutor doesn’t have to disclose material impeachment evidence prior to entering into a
plea agreement. Does in trial, but not in a plea. Plea agreement doesn’t carry the same rights as a trial; is a waiver of rights. Disclosure necessary for trial fairness, but with pleas we aren’t concerned with fairness so much as whether the plea was voluntary. vi. Youngblood- Not a Brady claim, issue was whether the gov’t had an obligation to preserve evidence that may later become beneficial (DNA samples destroyed). Court held that there is no constitutional requirement that the gov’t hold evidence forever. To show a violation, there needs to be a showing of gov’t bad faith—in other words the evidence was purposely destroyed to prevent testing. Rare case that focuses on the subjective motivations of the government officials. GUILTY PLEAS- Why plea guilty? Why plea bargain? Guilty pleas raise questions even if they aren’t the product of a plea bargain. Constitution and procedure rules address issues that arise. Rule 11(b) requires the recitation of rights that the def. is giving up by pleading guilty. The Colloquy: a Prophylactic rule that forecloses the possibility of a plea being overturned. a. Dominguez-Benitez- When the judge forgets a part of the plea colloquy and the def. wants to overturn the conviction, the def. bears the burden of showing there is a reasonable probability that but for the error the defendant would have failed to plead guilty. b. Substitutes for Trial i. United States v. Broce (U.S. 1989) - Broce pled guilty to 2 counts of conspiracy rigging bids for building highways in Kansas; when it was later found there was only one conspiracy (basically one large conspiracy instead of tons of little ones), he wanted his convictions overturned based on Double Jeopardy. The SC said no dice. “We hold that the double jeopardy challenge is foreclosed by the guilty pleas and the judgments of conviction.” Broce made his decision and that is not invalid despite a lack of information—in this case that there was only one conspiracy. ii. Blackledge and Menna- on the face of the complaint there is no valid gov’t charge—these types of pleas are invalid iii. North Carolina v. Alford (U.S. 1970)- Pled guilty to 2cnd degree murder, maintaining all the while he was not guilty. I’m not guilty, but I plead guilty; I just pled guilty because they said if I didn’t they would gas me. He got a 30 year sentence. Alford wanted the plea undone—decides that he isn’t comfortable with the plea even though if the plea is undone NC may prosecute him for capital murder. Court
say that he can’t undo his plea—it was his choice he is stuck with it. 1. Nolo Contendre plea- you don’t contest the charge; had long been accepted in the federal system by the time Alford came along. Not exactly an admission of guilt but an acceptance of the sentence the court is willing to impose. A plea for lenience coupled with acceptance. Nolo plea you don’t admit guilt. Alford plea you deny guilt. 2. No constitutional problem with an Alford plea—no voluntariness problem and situated to make a rational decision just like in Brady. 3. Due Process is not offended by an Alford plea. c. Lawyers and Plea Bargaining Voluntariness- Over 94% of defendants in states and 99% federal plea guilty.
i. How plea bargaining became so prevalent: 1. Costs of trial rose (longer process, lawyers, witnesses, court costs) 2. Costs of constitutional rights in the Post-Warren Court era. So many more ways for a trial to go wrong (error and retrial costs). 3. Dockets have increased (civil as well) 4. More determinant sentencing (mandatory sentences make bargaining more attractive to defendants) 5. Severe sentences 6. Reputational costs from trial (media has evolved in last 50 years) 7. Over criminalization 8. Repeat players make negotiations more predictable ii. Why would you want plea bargaining if you’re a….. 1. Judge: time and effort of trial 2. Prosecutor: move more cases 3. Defense Counsel: workload reduction iii. Brady v. US (U.S. 1970) (not the same Brady as above)issue was whether any time there is death involved, a guilty plea in exchange for a life sentence amounts to an involuntary plea inconsistent with due process. Case was a kidnapping (now you can’t impose capital sentence for that crime). Brady pled not guilty, but switched when a co-def. pled guilty. Then he challenged his plea as made under duress, improper threat of violence (execution). He made this challenge once the SC said no death penalty for Kidnaping Held: The threat of the death penalty does not render a plea bargain involuntary. 1. The kind of coercion Brady was claiming was just a punishment that could be levied---all punishment is coercion if the death penalty is coercion. 2. Similar to Williams analysis; an alibi defense is not compelled self-incrimination….here death penalty potential is not coercion. 3. A slippery slop argument: If find coercion, here all of plea bargaining is improper. 4. Death penalty is not a distinct type of punishment; if you are so frozen by fear of the death penalty that you are unable to make a rational choice, you may well have other issues (psychological) that prevent you from standing trial. 5. A regime in which all plea bargains are not allowed would do more harm than good to defendants. iv. Bordenkircher v. Hayes (U.S. 1978) - The gov’t is free to threaten any lawful sanction in the course of plea
bargaining*.Def. was charged with forged instrument. Prosecutor offered a 5 year plea deal and said that if Def. didn’t take it he would be charged under the habitual offender statute and face life in prison. The Def. refused the deal and the Prosecutor charged him with habitual. The Def. lost the case and went to jail for life. Then he claimed his due process rights were violated by the reindictment. Held: A prosecutor’s open presentation of an unpleasant alternative to rejecting a plea and then following through on the threat does not violate Due Process. No coercion. 1. Def.’s choice to proceed to trial was voluntary. 2. No surprises. 3. Rational, intelligent and made with the help of counsel. 4. We don’t even care about the vindictive prosecutor. Wrong motives, but courts are highly reluctant to peek into motives of prosecutors. d. Subject Matter Limitations: The Government can basically do whatever the fuck it wants during pleas. i. Here’s a rundown of shit prosecutors can get away with:
Brady Bordenkircher Pollard (not assigned) Rumery Mezzanatto
Plead guilty Plead guilty Plead guilty
Reduce lawful charges Not increase lawful charges Reduce lawful charges against someone else (wired plea agreements) Dismiss all charges Have plea bargain talks with prosecutor
Release § 1983 claim Waive exclusionary rights (FRE 410)
ii. Newton v. Rumery (U.S. 1987) - Rumery charged with witness tampering B Felony (woman who accused his friend of sexual assault). He made a deal with County attorney to drop charges if he agreed not to file a § 1983 suit against the county. Charges were dropped and then Rumery filed the § 1983 after all. Held: A crim def. may waive his right to file a § 1983 as part of a plea bargain. 1. Not an unfair choice of face crim charges of give up the § 1983—there are many such choices when plea bargaining, no person is coerced—plea bargaining is constitutional 2. Court refused to make a per se rule invalidating release-dismissal agreements; there may be prosecutors who are tempted to invent charges but there are also frivolous § 1983 suits. Presumption against prosecutorial misconduct. It all balances out. iii. O’Connor (controlling opinion in Rumery) 1. Must be presumptively invalid 2. KEY Factors (must have these for the waiver to be valid) (multifactor balancing test, no factor is dispositive) a. Knowledge of the defendant re: argument b. Nature of the charges (coercion threat grows with gravity of charges) c. Criminal justice objective d. Judicial supervision iv. U.S. v. Mezzanatto (U.S. 1995) - Charged with meth dealing. Before plea talks, agreed any statements could be used against him at trial. Talks fell apart, went to trial and was impeached using plea talk testimony. Convicted and appealed claiming Gov’t could not use the plea talk testimony, even though he waived his right. Held: A defendant may waive his right to exclude any statements made during plea bargaining as part of a plea bargain. 1. FRE 410 and FRCrimP 11(e)(6) used for analysis a. Such waivers are not waivers of fair process, in fact when a statement is used to impeach it shows the defendant has lied and is useful in helping the jury reach a verdict—which renders the scenario more fair, if anything. b. Does not discourage voluntary settlement— while such waivers may discourage defendants from entering into plea talks, it will encourage prosecutors. So effect is neutral.
c. Even though there is a possibility of prosecutorial abuse, the proper step is caseby-case inquiry, not a general ban on waivers. e. Enforcement of Plea Agreements (Plea bargains are like contracts): Typically plea agreements are staggeringly one sided—for the government. Promises are often vague and rarely concrete. Defendant generally makes an open-ended agreement to cooperate. Often prosecutor judges whether the cooperation is adequate and usually defendant must perform first. i. Mabry v. Johnson (U.S. 1984)- Burglary gone bad, father shot, daughter killed. Def. was offered a plea deal with 21 year concurrent sentence. He accepted. The Prosecutor reneged, meant consecutive sentence. Not a proper due process voluntariness, habeas corpus claim. Scott summary: An offer that has been accepted by a defendant does not bind the prosecution and force it to make the plea recommendation that it allowed; conversely a defendant may back out as well until point the plea is entered in court. This is difference in acceptance between pleas and contracts. 1. A prosecutor may withdraw a plea bargain after defendant has accepted. No question of voluntariness here: defendant agreed to the second bargain voluntarily with knowledge of what he was getting into ii. Ricketts v. Adamson (U.S. 1987)- . A non-participating contractor is not entitled to performance. AZ reporter car bombing. Def. entered into a plea in which he testified against the other two defendants in exchange for a 2cnd degree murder charge. When the other two had their convictions reversed, state began to retry them. At this point, Defendant had already been sentenced and refused to testify against them again unless the state released him from jail, put him and his family in witness protection, set up an education fund. Scott-interpretation of pleas diff than contracts…no penalty against the drafter of the agreement, no rule of lenity, no due process gloss that construes plea agreements in some particular way for defendant. iii. Santobello v. New York (U.S. 1971)- NY bookie, pled guilty to lower charge. Held: Prosecutors must stick to their plea agreement promises (even when the promise is made by another prosecutor). Part of the deal was prosecution would not make any recommendations as to the sentence. Series of delays before sentencing, and he gets a new attorney. Also new prosecutor and judge. The new
prosecutor recommends a sentence. Court overturns. Scott says: Very rare. An obviously harmless error which gets reversed. f. Ineffective Assistance i. Hill v. Lockhart (U.S. 1985)- Def. pled guilty to first degree murder and theft. Then sought habeas relief because his public defender did not inform him that he would have to serve half of his sentence before becoming parole eligible. Whether the plea was voluntary depends on whether the public defender’s advice was within the range of competence we demand of attorneys. Court would have applied the Strickland test to see if there was ineffective assistance. But stopped before because there was no alleged prejudice…even if the defendant had known that he would not be eligible for parole until half his sentence was served, does not allege that he would have not accepted the plea. Therefore no prejudice resulted from the public defender’s alleged incompetence. ii. Rationales for Hill 1. Minor outcome (parole eligibility): not like this is a life or death matter. 2. Speculative bargaining, outcome: 3. Floodgates/finality 4. Accuracy/ guilt v. innocence: there is no question that Hill was guilty of the crime as charged 5. Remedy-separation of powers problems: Hill wanted the court to give him a bargain that the prosecutor never entered into iii. Williams v. Jones (10th Cir. 2009)- Charged with first degree murder, offered a plea to 2cnd degree for 10 years. Attorney said he would quit if client accepted (said that it would be perjury). Client did not accept and was convicted, given life without parole. He claimed ineffective assistance of counsel. Oklahoma Court Criminal Appeals said there was prejudice due to deficient performance and modified sentence to include a chance of parole. HELD: This remedy wasn’t good enough, with adequate representation he might have only gotten 10 years—remanded to resolve as closely as possible to remedy. THE CRIMINAL TRIAL a. Jury Size and Composition: Jury trial is triggered by 6 months or more penalty. Defendant does not have a constitutional right to a bench trial (Singer). Jury Trial Pros Jury Trial Cons
Protection against government oppression. Judges are appointed to push the government’s interest. Ordinary citizens usually don’t push the gov agenda. Judges may be accountable to the executive branch. Judges may be idiosyncratic. Prosecutors may be overzealous or biased Checks and balances. The voice of the people (jurors) determines whether or not the law should apply to the situation. Reasonable person standard is good for reasonable people? (jury of your peers). Judges are fucking secluded and up in their ivory towers. Legitimates the system: people being involved in the system think its not just about fucking us over. Fair for everybody. Civic involvement.
Expensive Less opportunity for questioning
Stupid, lazy, litigated, weird
CSI effect. Tv effects these people
Jurors are too passionate i. Ballew v. Georgia (U.S. 1978)- Charged with distributing obscene materials (misdemeanor), tried by a 5 person jury. Held: anything less than a 6-person petit jury is unconstitutional—except for petty crimes in which there is no jury right at all. 1. 6 person is ok, Williams v. Florida. 2. 6th Amendment did not mandate a jury size, just wants a sufficient size to a. promote group deliberation b. insulate members from outside intimidation c. provide a representative cross-section of community 3. Based on empirical evidence, following problems with smaller than 6 jurys: a. Smaller are less likely to foster effective group deliberation (more people, better memory, better equipped to handle complex cases) (larger group, more likely that biases balance out) b. Increased risk of innocent conviction and more extreme compromises c. Fewer hung juries d. Poor minority group representation
e. May be other problems that research flaws mask. Apodaca- a non unanimous jury verdict is permitted at least when there are 12 members, but SCOTUS has held that is not permitted when there are only 6. SCOTUS has not resolved what happens in between 6 and 12. Jury Selection (Excellent description at 1323. Re-read.) Ways to get out of it: 1. Disqualification (illiterate, felon) 2. Exemptions (usually occupation based, doctors, clergy) 3. Excuses (old, infirm, transportation, small kids) Ways to get out of it during Voir Dire: 1. Exclusions (challenges for cause) due to inability to remain impartial. No limit to these. 2. Peremptory Challenges. Limited number of exclusions, no explanation required. Duren v. Missouri (U.S. 1979)- (Fair Cross-section claim) Missouri had a rule that allowed women to opt out of jury duty automatically. Duren challenged his murder and robbery conviction, claiming that he did not receive a fair trial because the jury was not a fair cross-section of the community. Held: Allowing all women to opt out of jury duty automatically, which creates juries that are 15% female instead of the representative 52%, is a violation of the Constitution’s fair cross-section requirement. 1. *KEY* 3 prong test to prove prima facie violation of the fair cross-section requirement a. Group excluded is a distinctive group in the community b. The representation of the group in venires from which the juries are selected is not fair and reasonable in relation to the number of such persons in the community c. Underrepresentation is due to systematic exclusion of the group in the jury-selection process 2. No requirement that the actual petit jury is representative—only concerned with jury pool-However, this outcome is likely in the system. (requiring representative forces a numbers problem— you can’t neatly divide by 12—and forces the court to engineer juries) 3. Rehnquist dissented, arguing that the same logic could be used to require doctors, etc to serve
vi. Witt: juror cannot serve if juror is substantially impaired by belief that interferes with juror’s ability to serve fairly and impartially but it must be an extreme situation. vii. Death-qualified Juries: In capital cases, potential jurors must be willing to impose the death penalty. WitherspoonAnything less than an affirmative declaration that you will not impose the death penalty is ok; Cannot stack the deck with only jurors who would choose the death penalty—not an impartial jury or a cross-section. viii. SCOTUS has never recognized a 6th Amendment skewing challenge that moves a jury one way or another. b. Peremptory Challenges i. Batson v. Kentucky (U.S. 1986) (race-based peremptory challenges)- Held: Race-based peremptory strikes violate the Equal Protection Clause. Burglary and receipt of stolen goods case. Prosecutor used peremptory challenges to strike all four black people on the venire. Batson claimed that this was racial. 1. How to do a Batson Challenge: a. Def. must make a prima facie case of purposeful discrimination. b. Burden shifts to state to prove some reason other than race for why the person was excluded. c. Trial judge makes a factual finding. 2. Court takes the position that race-based exclusion is rational (they don’t come out and say this) but that it violates the EPC. ii. Race of the defendant is irrelevant for Batson purposes. The def. in a criminal case is capable of objecting on third party grounds (so a white def. could object on behalf of potential black jurors). iii. Batson applies to either defense or prosecution (McCollum) and gender (J.E.B. v. Alabama). It does not extend further than race and gender. iv. Batson challenges are usually narrowly decided based upon the trial transcripts. We want to know exactly what went down in the courtroom during jury selection that day. v. Cases that passed a Batson Challenge (can be silly/gut instinct things): 1. Hernandez- Bi-lingual Latinos were excluded because of prosecutor’s fears that would be hard to accept the court interpreter’s version. This was a race-neutral reason and passed muster on a Batson challenge.
2. Purkett- Prosecutor claimed he struck two black jurors because of facial hair and unkempt hair. This excuse worked and passed the Batson challenge. vi. Miller-El v. Cockrell (U.S. 2003)- Prosecutors used peremptory strikes to remove 10 of 11 black potential jurors. Held: This violated Batson. Need clear and convincing proof that lower court’s factual findings were incorrect. 1. Reasons in the opinion that there might be a racial problem: a. Racial pattern in the strikes b. Inconsistency with similar white jurors c. Mischaracterization of testimony d. “Texas shuffle” e. Racial pattern in questioning f. Old prosecutor’s handbook g. Shifting explanations h. Weak explanations c. Defendants’ Trial Rights i. Right to choose whether to Testify (Rock): But the testimony is subject to the Rules of Evidence. ii. Right to be present (Allen). Not absolute, i.e. unruly defendant. Courts have a large degree of latitude in making such decisions. iii. Modern debate focuses on what Prosecutors may say about the above rights. 1. Griffin- (no adverse inference) Prosecutor cannot make comments that allow the jury to draw an adverse inference from the Defendants refusal to testify. (also cannot give a jury charge doing the same). a. This particular inference is not a reliable one. Lots of reason for non-testimony that have nothing to do with guilt or innocence, most common is a prior record which becomes fair game upon defendant testifying. 2. In later cases, court have ruled that there must be a jury instruction that there is no adverse inference permitted, where one party requests it or it is required by state law. 3. Any strategy by the state that places a burden on the defendant who is utilizing a trial right is presumed unconstitutional. iv. Portuondo v. Agard- (marks the furthest the Court is willing to go in the Griffin line). In closing prosecutor said that the defendant’s testimony was in question because he testified following the state witnesses; prosecutor claimed
that this allowed the defendant to tailor his testimony to fit the witnesses. Held that commentary (defendant may have tailored testimony) was not unconstitutional. 3 Parts: 1. This type of inference about testimony tailoring was not impermissible in the same sense that Griffin was. Because the jury is free to draw inferences about the order that witnesses give testimony, prosecutor can point it out 2. This is just going to the weight that should be given to the testimony, not to the guilt or innocence 3. A natural/irresistible inference that the jury cannot help but make no matter whether the prosecutor points it out. (Scott thinks this is most important). v. Confrontation Clause Cases: Pre-Crawford: Law of hearsay looked a lot like the law of the confrontation clause Ohio v. Roberts was the controlling case. Roberts Rule: Roberts says that an unavailable witness's out-of-court statement may be admitted so long as it has adequate indicia of reliability--i.e., falls within a "firmly rooted hearsay exception" or bears "particularized guarantees of trustworthiness." vi. Crawford v. Washington (U.S. 2004)- Guy stabbed a guy that supposedly attempted to rape his wife. At issue was whether the victim has something in his hand (like a weapon). Husband testified that he did. Wife said not so much, but he invoked the spousal privilege to prevent her from testifying. But wife’s tape-recorded statements to police were admitted. Held: Allowing the tapes was a violation of the 6th Amendment Confrontation Clause. 1. Did not overrule Roberts, but fundamentally changed the test used. 2. Rule: “Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.” 3. Does not give a comprehensive definition of “testimonial”. vii. Crawford Rule For testimonial statements (USE THIS): Out of court statements are inadmissible unless: 1. Witness did not appear at trial because was unavailable AND 2. Defendant had had a prior opportunity for crossexamination.
d. Confrontation of Witnesses i. Davis v. Washington (U.S. 2006)- Two cases covered here, Davis (non-testimonial) and Hammon (testimonial). In Hammon, domestic violence situation in which police separated the wife and husband and took a statement from the wife. At trial, wife did not appear (failed to respond to subpoena). Her statement to the police was testimonial because there was no emergency and the police were investigating a possible crime. In Davis, the victim’s statements to the 911 operator’s interrogation were not testimonial. There was an emergency situation. ii. Rule for deciding if a statement to police is testimonial: 1. Nontestimonial: Ongoing emergency Statements made in the course of police interrogation when circumstances objectively indicate the primary purpose of the interrogation was to enable police to meet an ongoing emergency. (Davis) 2. Testimonial: Statements made when circumstances objectively indicate that there is no such ongoing emergency and the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. (Hammon) iii. Michigan v. Bryant-Court admitted statements made by victim to police who found him mortally wounded in a gas station parking lot. Stated that “Rick” shot him; statement was 25 minutes after the shooting. Shooting took place at the house of victim, he drove to gas station. Held: This is not testimonial. Was an ongoing emergency because defendant’s whereabouts were unknown and he was wandering about with a gun creating a threat to the public— an ongoing emergency. iv. Melendez-Diaz- A logical extension of Crawford. (Scott feels there are troubling implications of this). Held: Certification by a lab technician of drugs fall within the scope of confrontation clause and that the technician must be dragged into court to explain the testing. v. Bullcoming- A forensic lab report about the BAC of the sample. A scientist was present to explain machinery and procedures at the lab, but he didn’t do the testing himself or observe the test. Held: Actual scientist who performed the test must be present 1. Sotomayor’s concurring opinion gives a laundry list of other theoretical limits on Melendez-Diaz that court was not asked to decide, but may in the future succeed
a. If the report could serve another purpose other than being used for litigation. b. Maybe if the person who testifies is the supervisor of the actual testor this would be acceptable. (So this would save costs) c. No underlying testimony here (just test results and no opinion) d. If a test that produced a machine print out and had no human signing off, then there might not be a confrontation clause requirement to have the actual scientist/ tester show up at trial vi. Related Hypo: Scott thinks autopsy reports probably fall within the scope of Crawford and the person who does the autopsy must appear. A more specialized type of testing than say blood testing. vii. Gray v. Maryland (U.S. 1998)- (Redacted confessions) Gray and others charged in beating death. Co-Defendant confessed. His confession was admitted against Gray after Gray’s name was redacted. Earlier, Bruton Rule held that such confessions (co-defendant) are not admissible in joint trial, despite a limiting instruction to the jury. Here the court held that there was still existence of a third party in the confession, which was problematic—allowed jury to connect the dots. Held: Redacted co-defendant confession is not admissible—is testimonial and the confessor cannot be compelled to testify for confrontation clause purposes. (note: if properly redacted, a confession may pass Bruton, see Richardson below) 1. Jury instructions: Limiting instructions aren’t enough. 2. Rule: “considered as a class, redactions that replace a proper name with an obvious blank, the word “delete,” a symbol, or similarly notify the jury that a name has been deleted [are not admissible]” 3. Richardson was different. Text of the confession was dramatically redacted to remove any reference to any existence of a co-defendant. This made the confession admissible. The jury had to make an inferential leap to conclude that the accused was also there. 4. Scalia- notes that Bruton is not the only way to deal with these problems—the judge can choose to sever the defendants—have separate trials. e. Prosecutorial Misconduct i. Darden v. Wainwright (U.S. 1986)- Darden entered a small furniture store, robbed and sexually assaulted the female
proprietor, killed her husband and shot a teen boy who tried to help. In closing, the prosecutor repeatedly called Darden an animal, said he should be on a leash, that a death sentence was appropriate to keep public safe. Darden was convicted and sentenced to death. On appeal, Darden argued that the remarks violated 8th Amendment. Held: Prosecutor was out of line, but the 8th was not violated— the trial was not fundamentally unfair. 1. Jury was instructed to make decision based only on evidence. 2. Defense counsel also said some things that were not allowed (personal opinion, death penalty talk) 3. Defense had last close, which allowed them to rebut many of prosecutors untoward comments. 4. Scott thinks this is an invited response type issue, that it was a tactical decision by the defense to let the prosecutor get worked up—and this is inviting. 5. Anyway, there was tons of evidence that Darden did it. f. Proof, Verdicts, and Factual Accuracy (no cases???) SENTENCING: Prof. Scott’s primary field of study. Some initial notes: a. The rules are poorly defined and unsatisfying b. Less than 5% of defendants have trials, but all have sentencing hearing. For most this is their most important day in court. c. Currently 2.3 million people incarcerated, 5 million on probation or parole. This costs a lot of money. d. Discriminatory rates: Large portion of black men and disparity between races in how they are prosecuted. e. Grain of salt: Crime has declined as we have upped incarceration. f. At sentencing hearing, pretty much everything is on the table, their entire prior life history—even juvenile—and prior convictions. This is just a calibration of a punishment for a current offense in light of another recent offense. g. “Its sentencing law—there are no rules” i. So drug addiction can make a sentence better or worse. ii. Military service iii. Upbringing h. Proportionality
3rd Felony OK (previous violent) Rummel Life with parole 3rd Felony (all OK nonviolent) Solem Life without 7th Felony (all Violates 8th parole non-violent) Amend Harmeloin Life without First offense, OK parole 650 grams cocaine i. Ewing v. California (U.S. 2003) - Ewing sentenced to life in prison with possibility of parole after 25 years after he stole 3 golf clubs worth about $1200. This was his third strike (felony). He was charged with grand theft a “wobbler” under Cali law which means the charge can be moved down to a misdemeanor at the prosecutor’s discretion. Basic argument: state should be allowed to pursue whatever punishment that it wishes. A state decision. ii. Roper v. Simmons (U.S. 2005)- Simmons planned and committed a murder at age 17. He was sentenced to death. Question: whether evolving standards of decency require us to revisit what is cruel and unusual. Held: The Eighth and Fourteenth Amendments forbid imposition of the death penalty on offenders who were under the age of 18 when their crimes were committed. iii. Factors used to determine if punishment is cruel and unusual (2 part analysis) 1. Practice: What the states are currently doing. (here there was a little discrepancy as to what each state was doing 2. Independent judgment. iv. Lack of maturity/culpability v. Peer Pressure vi. Subject to rehabilitation vii. We can reconcile this with Ewing only by saying that capital cases are handled entirely different. “Death is Different” Otherwise, the court would have just let the state decide. i. Discretion and Rules i. Williams v. New York (U.S. 1946)- Convicted of murder, jury recommended life in prison but after reading the sentencing report the judge sentenced him to death. Report stated that had “morbid sexuality”. Group sex and pictures of other kids his age. Held: Williams was not denied due process. Upheld full discretionary judicial sentencing procedures. Ewing Life with parole
1. Requiring formal approaches would get in the way of courts and justice and the states must be allowed to try new approaches. 2. Scott notes that this procedure violates a half dozen constitutional standards today. 3. Loose evidentiary standards may reveal mitigating factors 4. Experimentation by states is a value that should be served by the 6th Amendment. 5. History: Since founding, judges have exercised this kind of discretion.
j. Post 1986: Most states moved towards more determinate sentencing i. Most states, IN included and federal, have abolished parole and parole boards with good time credit. IN gives 50% good time credit. The Feds give 15%. ii. Mandatory minimums- a type of determinate sentencing which assures a minimum level of punishment. Mainly violent, firearm and drug crimes iii. Statutory determinate sentencing: there is a presumptive sentence for every crime that meets this description, specified by the legislature and a judge can only depart from this if they find extenuating facts that justify the deviation. iv. Sentencing guidelines: range that judges must work within— no questions about any sentence within the range but if outside must justify. v. All of the above innovations have come under criticism in the last 20 years. IN context of the federal guidelines here are the chief complaints: 1. Too strict. Judges can’t consider childhood poverty, drug addiction, etc. 2. Guidelines manual is thicker than the tax code (not really true, but is complex). 3. Too inflexible. vi. The determinate sentencing move has been dramatic. vii. McMillan v. PA (1986)- PA Act made a mandatory minimum sentence of 5 years for certain felonies when there was visible possession of a firearm. The mandatory sentence was not a due process violation, neither was the standard of proof. A preponderance of the evidence standard of proof was sufficient even though trial evidence requires a beyond reasonable doubt standard. 1. The court held that visible possession of a firearm is a sentencing consideration, not an element of an offense. 2. Sentencing courts can use a different standard of proof than trial courts. No evidence that legislatures are using the mandatory minimum to relieve burden from prosecution to prove elements (wag the dog) so no 6th violation. 3. Some discussion of how crime prevention and punishment is much more a state business than federal viii. Almendarez-Torres (1998)- A prior conviction falls outside the 6th Amendment scope. Can be used for a sentence
consideration even though not presented to a jury. Doesn’t circumvent jury as primary finder of truth ix. Apprendi v. New Jersey (2000)- At least some of the factors relied upon i determinate sentencing are the functional equivalent of elements of a new crime. Unlawful firearm possession case. But trial judge found by preponderance that the crime was a crime of intimidation based on race of the victim, which triggered hate crime guidelines and allowed the judge to sentence Apprendi to 12 years instead of 5-10. Held: Violated Constitution by depriving defendant of right to pretrial notice of all the crimes (and elements of them) that he was accused of. 1. RULE: “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt” x. Harris v. U.S. (2002)- McMillan and Apprendi are consistent. To wit: Any fact that extends a sentence beyond the maximum authorized by a jury’s verdict is a sentencing factor, but a fact that increases a mandatory minimum (but doesn’t extend it beyond the statutory maximum) is ok because the jury’s verdict had authorized the judge to sentence the minimum. xi. Blakely v. Washington (2004)- Husband pled guilty to kidnapping his estranged wife. The agreed sentence range was 49 to 53 months. After hearing the sentencing statement of the wife, the judge imposed a 90 month sentence for deliberate cruelty. Blakely objected, so judge held a 3 day sentencing hearing to hear evidence. Then he affirmed the sentence. Blakely claimed the sentence was a violation of 6th Amend right to have a jury determine facts. Held: The judge imposed the longer sentence based upon an additional finding of fact, which violated the 6th Amendment. k. Federal Sentencing in Turmoil i. United States v. Booker (U.S. 2005)- Held: Blakely’s construction of the 6th Amend applies to Federal Sentencing Guidelines. The practical step—the court made the guidelines advisory not mandatory by repealing two sections. So defendants are not entitled to exact sentence ranges. So exact same procedure as before, but now the judge is supposed to consider all kinds of factors after he looks up the range and then he imposes his sentence. 1. Booker: Jury found he was guilty of dealing crack in the quantity of 92.5 grams. Judge found by preponderance in sentencing that Booker actually
possessed 566 additional grams and sentenced him based on the higher quantity (360 months compared to 210-262). (A 6th violation 2. Fanfan: Jury convicted of distribution of over 500g coke. In sentencing judge found by preponderance that Fanfan controlled a much larger amount of drugs and was the leader of the operation. However judge imposed the lower guideline sentence which the jury had authorized. 3. (This was not a 6th violation but remanded anyway) ii. Scott: The remedial opinion in Booker resolved the problem by determining that the Federal Guidelines were now only advisory iii. Gall v. U.S. (U.S. 2007)- (note: a federal case, little use in state context) (reasonableness review) Federal sentencing guidelines were made advisory under Booker and sentences can only be reviewed for their reasonableness. Gall was part of an ecstasy dealing ring while in college, but only for 7 months. He was drug free and held down a job afterward. He pled guilty 3.5 years after the fact. The judge gave him 3 years of probation but no jail time (which was recommended by the gov’t 30-37 months). U.S. appealed to 8th circuit which said judge had to follow federal sentencing guidelines. Supreme Court Held: The trial judge’s sentence could not be overturned when analyzed under a deferential abuse of discretion standard. DOUBLE JEOPARDY: Scott thinks the rules are confusing and unsatisfying. Reasons for them are: Finality, avoiding persecution by multiple proceedings, strategic abuse, inefficiency. a. “Jeopardy”: i. Foo Fong v. United States (U.S. 1962)- (1490) Following the government’s 4th witness (actually in the middle of testimony), the judge directed the jury to return an acquittal. Not sure why he did this (bribery?). He claimed either improper AUSA conduct or lack of witness credibility. Held: Double Jeopardy precluded retrying not matter how outrageous the trial judge’s conduct. WE GIVE ACQUITALS “SUPER-DEFERENCE”. ii. The double jeopardy right doesn’t attach until the trial begins (Serfes); the trial begins when the jury is empanelled (Crist). iii. Scott- Some counts but not others dismissed in middle of trial due to pre-indictment delay. Held: Key question in deciding if mid-trial dismissal provokes DJ is if dismissal is due to something inside the trial (like witnesses). In this case, tantamount to acquittal. But in this case, no DJ
invoked because judge dismissed due to prosecutor taking too long. iv. Smith- At end of gov’t case, judge granted defense motion to dismiss one charge (no scintilla of evidence as to barrel size of gun). In closing gov’t brings up that previously Mass. Courts didn’t require barrel size and judge put the charge back before the jury. On appeal, claimed that this violated DJ. SC said this did violate DJ because of a state law. Judges can reconsider dismissal motions mid trial v. Hiban vi. Ball vii. Ashe v. Swenson (U.S. 1970) - An assailant robbed 4 people. Def. was charged with robbing one. He was acquitted and subsequently charged with robbing another one of the four. Held: Jury had found beyond reasonable doubt that Ashe was not the assailant. Since that issue had been once resolved, government could not continue to work its way through each of the victims in an attempt to get charges to stick. viii. Oregon v. Kennedy (U.S. 1982)- Theft of oriental rug. Judge granted defendant’s motion for mistrial after Prosecutor inferred that defendant was a crook. Defendant claimed double jeopardy when state sought to retry. Held: No double jeopardy. DJ is only invoked when prosecutor makes such a statement with intent to cause a mistrial. 1. If there was a rule that never could retry after a mistrial, defendants would request always. And judges would be very careful about when to declare one. 2. If there was a rule could always retry, prosecutors would be able to intentionally create a mistrial and then get a do over. 3. Scott notes that this intent test is a subjective test and such tests are quite rare. 4. Perez- old case that says if a jury is hung it is not DJ to retry. (this is the primary example of manifest necessity) b. “Same Offense” There is another form of DJ, when a person is tried and convicted twice for the same offense. Blockburger governs. i. Blockburger v. United States ( U.S. 1932)- Charged with selling morphine outside the original package and selling morphine without a written order from the buyer. He claimed this was double jeopardy, because the offenses were identical just had different names.
1. Test: For two crimes to be separate each punishable, each crime must have at least one required element that the other crime does not. Blockburger has had a strange path…it was not valid for a while and now is valid law again. Below is the chain of Blockburger cases: Brown v. Ohio- joyriding and auto theft charge for a 9 day spree. Court claimed each charge was attached to specific dates that were exclusive. The court rejected this logic, but noted the legislature could divide crimes up into days if they so wished. Harris v. Oklahoma- Felony murder case. First got conviction on felony murder, didn’t like the sentence and tried the guy for the robbery that made it felony murder. Court held the robbery was a lesser included and there could be no subsequent indictment. (This holding had implications for conspiracy and RICO crimes, SC held was fine to charge multiples in RICO) 1. Nothing wrong with having a single trial in which an offense and a lesser included are both presented to the jury and the jury is allowed to pick one. Grady threw things for a loop for a couple years, but now we are back solely using Blockburger. Grady is NOT good law U.S. v. Dixon (U.S. 1993)- Dixon arrested for second degree murder and was released on bond. Release form said he was not to commit any criminal offense, and any violations would subject him to revocation “of release, contempt of court etc”. While awaiting trial, arrested for possession with intent to distribute. Was found in contempt AND prosecuted for the possession charge. Held: Dixon’s drug offense did not include any element not contained in his previous contempt offense, his subsequent prosecution violates the double jeopardy clause. Garnett and Felix- continuing enterprise crimes don’t fall under Blockburger, common scheme or plan rather than a continuing same crime. Court hasn’t given us clear answers on how to handle list offenses and hasn’t really reconciled Harris and Dixon
This action might not be possible to undo. Are you sure you want to continue?
We've moved you to where you read on your other device.
Get the full title to continue reading from where you left off, or restart the preview.