You are on page 1of 65

641 Criminal Procedure: Adjudication Professor Michaels Spring 2008

A.

Defense Counsel: 1.When Will Counsel Be Provided Hamden v. Rumsfeld [2006] (handout): Questions: What rights from a normal criminal case were provided to enemy combatants in the Military Commission procedures? Right to Lawyer (Military lawyer is provided but civilian lawyer may be hired as the individual’s expense.) Notice of chadrges Presumption of innocence Does provide double jeopardy (Under the CMA jeopardy attaches in the case of a finding of guilt ONLY after all your appeals are done) What ―rights‖ were not provided? Right to see and hear evidence Right to presence Trial can be closed to the defendant and their lawyer. Grounds for closure ―include the protection of information classified or classifiable…; information protected by law or rule from unauthorized disclosure; the physical safety of participants in commission proceedings, including prospective witnesses; intelligence and law enforcement sources, methods, or activities; and other national security interests.‖ (handout pg. 2) Public is excluded Right to federal rules of evidence (hearsay is admissible that overlaps the right to confront your accuser, which the accused does not have in this context. Confrontation rights No trial by jury (Not jury of peers, it’s military officers) Voir dire (ask jurors questions to determine qualifications) Jury size (three in this case; military commissions act raised it to five in future cases) Unanimity (normally required in most criminal cases) Speedy trial not provided Bail What were the absent rights that appear to have been more important to the outcome? Right to be present (The one that the court made the biggest deal about) Update: Presence is now provided, but if there is a security risk then the evidence may be presented in summary form, but presence is necessary. -1-

Relaxed rules of evidence Separation of powers/independence Problem with judges (Lack of regularity of judges; not all equally educated, etc) If you were on trial for a serious crime, what right or rights would you consider most critical? Unanimity (you only need one to side with you in order to get a retrial) Presence Speedy trial Present evidence Right to counsel Independent appellate review As a member of Congress, which rights, if any, would you vote to dispense with? Would your answer differ if you were a member of the Executive Branch? If you were a prosecutor and normal criminal cases were involved? As to each of these: Why? Appointment of Counsel Is an indigent charged with robbery in state court entitled to the right to an attorney provided by the state? Yes To a textualist, is the above statement a true representation of the content of the Sixth Amendment? You have the RIGHT to counsel, but not necessarily the right to have the state provide it. How can you enjoy the right if you cannot afford it? Originalist view: is this the right result? No, the original intent is almost certainly just to entitle the defendant to the RIGHT to an attorney, not to guarantee the right to have a lawyer provided at the state’s expense. In many felony cases in England, defendants were not allowed the right to have counsel present for their case. This Amendment was meant to protect against that practice. Was Gideon rightly decided? Depends on who you talk to…not according to originalists. Incorporates the Sixth Amendment to the states. Why isn’t this Gideon v. State of Florida? This is a habeas corpus case A civil claim that you are being held unlawfully Your conviction violated your constitutional rights Congress has significantly tightened the standard for federal habeas corpus cases. Now, under federal habeas, the federal court is directed by Congress only to vacate your state conviction if your state conviction -2-

goes against clearly established federal law (generally means a S. Ct. holding). What Florida did in incarcerating Gideon, did not violate clearly established federal law, it was actually consistent with Florida law so it would come out differently with today’s standard. Why did the court conclude in Gideon that the right to counsel was fundamental and essential to due process? You cannot be assured a fair trial without a lawyer Is there a value besides fairness that supports the fundamental right of representation? Accuracy Reason for overturning: (1) Betts v. Brady didn’t follow precedent, reason and reflection demand this result. Powell v. Alabama (pg. 4-5) 9 young black men, unrepresented at trial, were convicted of raping a white woman. SCOTUS overruled the convictions, finding that the accused parties were entitled to representation by an attorney. Due process right to counsel was created there but there were a lot of provisions (ie: illiterate, ignorant, incapable of putting on an independent defense—referred to as ―special circumstances.‖) The case did not provide the right without special circumstances, so this case did not provide counsel to all indigent defendants. Race is a subtext in criminal proceedings. Incorporation: The Sixth Amendment (and Bill of Rights) only applies to the federal government. The Fourteenth Amendment has its own Due Process clause directed to the states. Through a process known as selective incorporation, the court determined that a particular provision of the Bill of Rights is incorporated if it’s a fundamental principle of liberty and justice. In the criminal context, a right is considered incorporated if the right is fundamental and essential to a fair trial. Most of the incorporation took place during the Warren Court. Brennan thought there should be full incorporation, instead selective incorporation was implemented over the next few decades. Only three Bill of Rights provisions are not applicable to the states: The 5th Amend. right to a grand jury The 2nd Amend right to bear arms and -3-

the bag and baggage group won. Bag and Baggage debate: Questions then arise. there may be a due process right. Generally speaking. Sixth Amendment says ―all criminal prosecutions. would that mean that there would be no right to appointed counsel in misdemeanor cases? No. not only is the Bill of Rights applicable to the states as well as the federal court. If we take the position that the 6th Amend.‖ (textualist response) Yes. In Powell v. due process itself required appointed counsel in some cases. Rhode Island Do not want to subordinate effective prosecution of the guilty Here Defense Attorneys subordinate justice Scalia (Dissenting in Alabama v. Alabama. fairness and accuracy are not as important in misdemeanor cases because misdemeanor cases are simple (the issues are usually straight-forward and the cases are usually only one day. Illinois). Without representation we will not know whether there was a fair trial with an accurate result. (non-textualist) No. under federal law (Scott v. does not provide a right to counsel in misdemeanor cases. (if. you go to jail) Most states have not required more. but the same meaning is used in both contexts. but only if. etc). there are three times as many misdemeanor cases and the cost would be too great to provide representation in all of those cases. Misdemeanor Cases: Should there be a right to appointed counsel in misdemeanor cases? Yes.The 7th Amendment right to a jury trial in a civil case. LeReed Shelton) Over-lawyering of minor cases Is there a right to appointed counsel for misdemeanor cases? Yes. you have the right to counsel in a misdemeanor case if there is imprisonment. Some states just automatically appoint counsel for jailable offenses. mainly: Does it have to apply to the states in exactly the same way as it applies to the federal government? By and large. because a layperson cannot effectively represent a defendant. but have matched the SCOTUS decision. No. -4- .

What about Shelton? He was never imprisoned. no counsel is needed or appointed because no jail time can be sentenced.  Nichols v. the prosecution in Nichols should be able to try to prove the plaintiff was guilty of the previous crime BUT.In some states (like Florida).: Uncounseled misdemeanor conviction: fine Counseled felony conviction Can court enhance felony conviction by two years. how much you’ve volunteered in the community.S. instead there shall be a case-by-case approach turning on the character of the issues involved. drug problems—how is it any different to count prior misdemeanor convictions?  Recitivism is always taken into account by judges  Judge can determine by a preponderance of the evidence crimes the plaintiff was acquitted of. right to counsel because no deprivation of liberty Reasoning: the punishment was not imposed because of the crime. Alabama: Misdemeanor conviction that leads to suspended sentence. based on misdemeanor? Why? Why not? o Yes. Rule: a sentencing court may consider a defendant’s previous uncounseled misdemeanor conviction in sentencing him for a subsequent offense. so it doesn’t really matter whether it is a conviction or not  ie: employment. but because of the probation violation The probation revocation hearing is NOT a criminal proceeding under the 6th so no counsel needed. the court can issue an order of no incarceration. Rule: counsel is not invariably required by parole or probation revocation proceedings. the plaintiff can counter that. driving. Doesn’t this seem wrong because he can be given a harsher sentence? o The sentence is actually for the new crimes o And the court can take into consideration whatever it wants when sentencing. Shelton v. U. Scarpelli: Counseled felony conviction: probation which includes suspended sentence Probation revocation hearing: counsel required? Why? Why not? No Sixth Amend. Depends. yet the court found a right to counsel.  Gagnon v. In that case.  Therefore. Counsel required? -5- .

preliminary hearing. information or arraignment. why we care? -6- . he sought to have this statement suppressed as a violation of his 6th Amendment right to counsel. However. How does this compare to the SCOTUS rule? A serious offense means any felony and misdemeanor for which the penalty is prescribed by law includes confinement for more than six months Broader than SCOTUS requires. 23): Defendant was arrested by warrant and gave a written statement about the crime with which he was charged. When does a criminal proceeding begin? During a stop for DUI: no right to counsel Arrested and asked to take a blood test: no right to counsel o State v. RULE: the sixth amendment guarantees that ―in all criminal prosecutions. for a petty offense may be appointed a lawyer. indictment.Yes. What about expert witnesses? Sixth Amendment gives right to counsel.  Definition of initiation of adversarial proceedings: The point at which the defendant is faced with the prosecutorial forces of organized society. but not to expert witnesses. Gregory Pierre [2006] (pg. the accused shall enjoy the right…to have the Assistance of Counsel for his defense. because he did not have counsel at the trial of the crime for which he would go to jail. o Bottom line: There is no answer to the question of when adversary proceedings have started in this context that is correct.‖ This right attaches only ―at or after the initiation of adversary judicial criminal proceedings—whether by way of formal charge. The important thing is. At trial. and immersed in the intricacies of substantive and procedural criminal law. HELD: The filing of the arrest warrant was not equivalent to commencement of adversarial judicial proceedings. How is this different from Nichols and Gagnon? How is this different from Scott or Argersinger? Why require lawyers? Reliability and fairness When is a lawyer required in Ohio? Ohio RULE 44: For a serious offense (punishable by 6months or more) D shall be appointed a lawyer. there is a due process right to expert witnesses where an indigent defendant makes a particularized showing of need for the assistance.

A detective follows Danisec to a bar and after he’s had a few drinks. What about an appeal. o Because it is not a criminal prosecution.**This is a very unusual situation. o Pretrial Context o Critical stage is defined as follows: Those pretrial procedures that would impair defense on the merits if the accused is required to proceed without counsel. but can convict you of a crime with a potentially over a year penalty. Miranda doesn’t apply here. Basically: Can’t send to jail for a day without counsel. the detective begins to ask questions about his alcohol consumption on the night of the DUI. without a waiver. this is already over o The right to counsel here is based on both due process and equal protection principles Magic Words: -7- . not Miranda rights. o SCOTUS has narrowed this:  The 6th Amendment right to counsel applies only to the offense to which the right attaches  Applies to deliberate elicitation to the defendant. RULE regarding Surreptitious questioning: Police cannot question you directly or through informants after the right to counsel has attached. Illinois Hold that the 6th and 14th amendments require only that no indigent criminal D be sentenced to a term of imprisonment unless the State has afforded him the right to assistance of appointed counsel in his defense. HYPO: Danisec is arraigned on DUI charges and is released on bail. is that a critical stage if you’re required to proceed without counsel?  No Sixth Amendment right to counsel in criminal appeals. o This is for 6th Amendment rights. so do not be concerned about the black letter of the law in this case. Scott v.

There is a higher level of legal competence required for an appeal. Judge will usually explain the consequences of giving up your right to proceed pro se Waiver of your right to proceed pro se can be taken away if you misbehave This right does not extend to appeals! No 6th Amend. -8- . if you’re competent to stand trial. Need to have both and this order for counsel presence to be required. This is called ―the dog that didn’t bark‖ argument. he can’t proceed pro se) is approval of the right to proceed pro se. then you are competent to represent yourself at trial.Selection and Rejection of Counsel (right to waive right to counsel v. affirmative right of self-presentation. Black letter: In order to effectively assert the right to proceed per se Must intentionally relinquish the right to counsel Have to be aware of the right and the consequences of giving that right up. Rule rationales: Autonomy Strategy Historical evidence In colonial times. The idea is that the absence of the raising of an alarm (hey. (when your formally charged by the state. The appellate system is more overburdened. it applies at every critical proceeding. Basically. It usually means a commitment to prosecute. 2. state says we are going forward with the charges) 1) Right to counsel attached (after the commencement of adversarial judicial proceedings) 2) Assuming right to counsel attached. (State is free to decide whether you may proceed pro se on appeal) Why? Judicial economy: it is more efficient for the court if a lawyer prepares the brief.The Sixth Amendment right to counsel applies only after the commencement of adversarial judicial proceedings. Pretty low standard. people often proceeded pro se and courts never admonished it. right to counsel on appeal. o Right to Proceed Pro Se Standard: whether you have a rationale and factual understanding of the proceedings.

Is this just a right for crackpots? Fundamental liberty interest Society should not force counsel on someone Attorney may not be worth the money If there is some exculpatory evidence (like a time stamped receipt). Right to proceed pro se stems from the Sixth Amendment and there is no Sixth Amendment right to counsel on appeal. you are more of a living. The relationship broke down before trial and the defendant requested to proceed pro se. Spencer was found guilty and he appealed arguing that he was denied his right -9- .The issues at trial involve mainly legal expertise and judges will not be swayed or sympathetic to an individual for simply proceeding pro se so the benefits of proceeding pro se at trial are not existent on appeal. Autonomy Argument: different after the trial is over. The right to proceed pro se was supported by historical evidence that is not present on appeal. 30): Spencer was arrested for growing marijuana and possessing firearms and cocaine. not appointed counsel Gives a right to call a lawyer. it may be better to go ahead without counsel. However. the D is much more sympathetic and humanized in front of the jury Bonus: personality can be shown WITHOUT the ability of cross examination. it is a lot harder to send people to jail. Sometimes people are more sympathetic when they see a personality. § 2935. breathing person. Joseph Spencer [1994] (pg. The court imposed ―standby‖ counsel for Spencer. Spencer was not indigent and had hired a lawyer. but does not appoint counsel for the indigent Court has not distinguished between right to use an attorney and right to appointed attorney No exclusionary remedy State v. there was a trial and the attorney did represent Spencer.20 Right to counsel: Right to an attorney: permitted for obtained counsel. could reveal past criminal acts : DUI Hypo Ohio Revised Code: Criminal Rule 44: right to counsel for serious offenses (6 months or more) Right might attach before constitutional right attaches.

Why did the court appoint someone then? There must be a knowing and voluntary waiver of the right to have an attorney once that right has attached. must show that the deficient performance prejudiced the defense to show that the Sixth Amendment right to counsel was violated (applies to both appointed and retained counsel). Where there is a conflict of interest on the part of counsel. etc) If the attorney does these things instead of allowing the defendant to handle them then defendant is being denied his/her right to proceed per se. is deficient AND 2. increasing the chance of reversal and validity of the case. (2) Does not apply on appeal. By (1) Stand-by Counsel. prejudice is presumed. Basically. Examples: Actual or constructively denied the assistance of counsel Various kinds of state interference with counsel’s assistance Defendant is barred from consulting with the attorney or the judge does not allow a summation or something like that.to proceed pro se. it is winning correctly. the result of the proceeding would have been different. Opinion: Case should have been reversed. Defendant has two core rights Right to control organization and conduct of his own defense (means to make motions. and (3) Edwards Case – Mental Illness. but for counsel’s unprofessional errors. If prosecutor doesn’t speak up it could affect the validity of the case. A reasonable probability is a probability sufficient to undermine confidence in the outcome In certain Sixth Amendment contexts. 39) Black letter test: Convicted person must show that the counsel’s performance 1. Right to give the jury the perception that the defendant is representing himself Faretta: Had slowly been limited (decreased in scope) in several ways since it was decided. 3. -10- . due points of law. Black letter: Court can appoint standby counsel. Prof. The burden is on the defendant to show both prongs. The defendant must show that there is a reasonable probability that.Adequacy of Counsel **This right does not exist if you proceed pro se** o Strickland v. even over the defendant’s objection. prosecutors have a job beyond winning. voie dire. Washington (pg.

 Where there is a conflict of interest on the part of counsel. There is a presumption for the attorney that conduct that may be questionable was strategic. goes out of its way to raise an issue that no one thought was an issue. Ct.  S. the challenged action might be considered sound trial strategy.‖ 4. prejudice is presumed o If the conflict is raised after the trial the test is that the defendant must show that the conflict adversely affected performance. the defendant must overcome the presumption that. o RULE: if the conflict is raised at trial. The court said: ―Because of the difficulties inherent in making the evaluation.  This is tougher than prejudice being presumed but more lax than the Strickland standard. It’s unclear now whether there will be a presumption of prejudice when the representation is not active.Systems for Providing Counsel o Effective Assistance of Counsel Test: Must show counsel’s performance was deficient and Reasonable probability that the result would have been different if it were not for the ineffective counsel o Exception to second prong:  Prejudice is presumed in certain circumstances. -11- . It applies where the lawyer is actively representing conflicting interests. that is. including:  Actual or constructive denial of council  Various kinds of state interference with counsel’s assistance o Defendant is barred from consulting with the attorney or the judge does not allow a summation or something like that. a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. under the circumstances.Buzz words for outline: The defendant must show that the counsel’s representation fell below an objective standard of reasonableness.

Lower court found that the judge did not actually know the conflict of the attorney at the time of trial but they said he should have known. during that trial the client was murdered. Same lawyer was appointed as the representative of the murdered of the client. the rationale for these exceptions is offered: It’s too hard to calibrate what difference these changes would have made. Keep the client updated So is this list comprehensive? Having the list may have cause attorneys to perform worse because they will only focus on performing the tasks of the list and not go above and beyond the list. -12- . standards is something you should know about as lawyers and something that you can apply in other classes. Taylor (a few years ago) Defense attorney was defending client. Inquire about plea negotiation 4. The advantage of a standard is that it potentially can apply perfectly to every case. If the judge should have known of the conflict then it goes with adversely effected performance group. o Michigan v. Rules vs. Rules may give a road map to get around standards Standard: More vague and flexible. Prepare for trial 6. Cross-examine state’s witnesses 7.6 Prompt action to protect the accused. Consult with client 5. Rule: something precise and particular. More likely to be under or over-inclusive.  Basic requirements of effective counsel: 1. Ineffectiveness of counsel under Strickland accepts as adequate the status quo of typical representation for indigents: In many jurisdictions the that level of quality is way below what a reasonably wealthy defendant could purchase. only representation well outside the norm will be considered inadequate counsel. o ABA Regulations: Standard 4-3. Request discovery 2. and it effects the system in such a profound way that prejudice must be presumed. Request plea bargain 3. Rules against standards questions may be on the exam.In Strickland.

Recent cases (all 5 to 4 cases and all death penalty cases) The Supreme Court suddenly started finding ineffective assistance of counsel. but rarely succeed. Claims of ineffective counsel are often made.3 p. The level of investigation was held very high in this case. The clue that the attorney got that would have lead to the sympathetic evidence was very obscure. o Remedies What remedies can there be other than a new trial? High burden to get a new trial Civil remedy—malpractice suit (N. More recent studies have stated the success rate between 6 and 10%. some jurisdictions require you to win an ineffectiveness of counsel claim first Some require proof of actual innocence Either way. Do we want to allow discretion? What’s the risk of providing discretion? Lower courts are determining whether the objective standard of reasonableness is met. Rompilla v. it is a high burden to overcome Trial counsel might have to show reasons for their strategy o Methods for providing counsel Three principle approaches for providing counsel for indigents Public defenders Paid by the state Best situated to implement a system-wide approach More likely to have the ethic to do that Assigned counsel Private practice on a list—paid on a case/hour basis Michaels say these are the best & worst -13- . 58) Before you can survive a motion to dismiss. Success rate for cases raised on pre-Strickland standard is about 4%. Beard: Counsel didn’t follow up on leads that would have lead to sympathetic evidence that may have influenced the jury against selecting the death penalty.Arbitrariness and prejudice can make their way into the decision because extraneous factors can influence the judgment since there is more discretion to make the judgment.

Standards Argument B. parole. the court shall consider all relevant information including but not limited to: 1. 5. 4. Bail: 1. not just monetary bail. (pg. o Subsection B of Ohio rule 46 generally discusses things necessary to ensure the defendant returns for trial. o Ohio Rule 46(b)(7): Any other constitutional condition considered reasonably necessary to ensure appearance or public safety. amounts and conditions of bail. The confirmation of the D’s identity. 98) Strong cases are more likely to flee because you probably won’t win Similarly with length of sentence Important factors Nature of the offense Penalty for the offense Strength of the case Vera Institute of Justice study Idea was to give judges more information about Ds in order to more accurately determine reasonable bail amounts Law student would make separate recommendation for bail amounts Prior to the 1960s—2/3 held in. length of residence in the community. 1/3 released Now flip-flopped -14- . and specifically whether the D used or had access to a weapon. or under a court protection order. character. jurisdiction of residence. bail. financial resources. record of appearance at court proceedings or of flight to avoid prosecution. employment. The D’s family ties. there is not much of a difference Michaels says a bigger factor is whether or not you are in jail pending trial And indigents are more likely to be in jail pending trial. post-release control. record of convictions. The nature and circumstances of the crime charges. o Alabama Rules of Crim Pro Lists factors to be considered in determining whether defendant should be released or not.Contract attorneys How do they compare to non-appointed counsel? Depends on the study—in aggregate.Pretrial Release o Ohio Rule 46(c): Factors in determining the types. Whether the D is on probation. a community control sanction. The weight of the evidence against D 3. 2. mental condition. Rules v.

103 n.  Holding people in to get a guilty plea is not supposed to be one of the rationales for bail. all of which are usually qualities that the court uses in considering length or severity of a conviction or sentence). fundamental interest in not being incarcerated o Very expensive to hold people in jail. o No one would be able to make bail. you have suffered a real loss of liberty (loss of connection with family. much cheaper to let people out. etc. then you may reach a different settlement point than if you were released…you’re more likely to plead guilty. o Preliminary injunction effect: if you know you’re going to be in jail for 12 months awaiting trial. the price that the bail bondsmen would charge represented the risk of appearance at trial.Pretrial (aka Preventative) Detention o Why would the state not want to release everyone on his/her own recognizance? o Some people wouldn’t show up for court o Why not set bail at $1 million? o Must balance the liberty interest balanced against the cost of the state to house you. o It is argued that evidence that people held in court before sentencing receive a higher conviction rate or sentence establishes a correlation. not causation. etc. detained people receive longer sentences and have a higher conviction rate o If you are acquitted. Of that remaining 25%. 22% are returned to the state. so only 8% of those released are outstanding each year.6) o In a study of bail practices. job. o What are the consequences of detention? o Cannot build as good of a defense—harder to meet with attorney or get witnesses o Statistically. -15- . o Of the people granted release. require bond Secured bonds—to combat the bail bond system 2. Money will push things the other direction. presumption of innocence until proven guilty. o Race and gender in release and bail decisions (pg. 75% do show up for court. o What does that say about our system? Are we releasing too many people? What should the standard be?  Alabama statute says bail should be set as to ―reasonably assure‖ that the defendant returns for trial.The ordinary procedure is to have a first appearance within 24 hours of arrest Judge will either release ―ROR‖.

 This market is too competitive to allow for fake prejudices in price because the market was too competitive. max. criminal justice status  The nature and seriousness of the danger posed by the person’s released. such judicial officer shall order the detention of the person before trial. o Factors to be Considered (same factors to determine if likely to show up)  ―the nature and circumstances of the offense charged. a drug offense with maximum penalty of at least 10 years. Judge may order detention where defendant is charged with: crime of violence. o 18 U. 3142(e) o When can a federal judge or magistrate order preventive detention?  ―If…the judicial officer finds that no condition or combination of conditions will reasonable assure the appearance of the person as required and the safety of any other person and the community. o U. including whether (it)is a crime of violence or involves….  All of these factors. 113)  Looked at Due Process and Eighth Amendment  Due process: -16- .drugs‖  Weight of the evidence  Person’s history including family ties. except for the last one are the exact things that judges were to look at to determine whether the defendant is a danger to the community. if two previous convictions matching the above. and any felony. o 1984: Congress passed Bail Reform Act allowing federal courts to detain arrestees under certain circumstances where they pose a risk to themselves or others.S. o Second Circuit struck it down as unconstitutional o Supreme court rejected the facial challenge to the Act.C.‖ o Can detention be ordered for any offense? 3142(f)  No. sentence life imprisonment or death. v Salerno (pg.o They found that bail bondsmen charged black defendants much less on average than they did white defendants.S.  Their pricing indicated that it is greater than a 1 in 10 chance that a white defendant wouldn’t show up. whereas black defendants were 1 in 8 to appear. The bail bondsmen think that black defendants are less likely to flee. employment history.

800) o Detention before any preliminary hearing  Judge hasn’t had a chance to see if D shows up. Utilitarian vs.  The preliminary hearing must be within 24-48 hours. the punitive/regulatory distinction turns on whether an alternative purpose to which the restriction may rationally be connected is assignable for it and whether it appears excessive in relation to the alternative purpose assigned. Analogies of the court: (p. so it is clearly necessary to determine whether the D is going to return for trial.)  Evidence obtained in violation of the Constitution may be considered  Rebuttable presumption of dangerousness for crimes involving guns or drugs. Regulatory test: Unless Congress expressly intended to impose punitive restrictions. Eighth Amendment says that bail cannot be excessive. o Court says that the meaning of the bail clause is not that there is always a right to bail. outweigh an individual’s liberty interest.   ●  o Distinction between punitive and regulatory detention  Punitive vs.  Preventative detention is rationally related to the legitimate goal of protecting society. o Is preventative detention excessive? Rehnquist says no. just that when bail is appropriate is cannot be excessive.K. ―There is no doubt that preventing danger to the community is a legitimate regulatory goal. o The court decided it was a regulatory detention  Does not require full-on due process. regulatory only requires that it be rationally related to legitimate government objective. Retributive purpose for punishment: o Here the purpose for holding Salerno is to prevent danger to the community o The court says.‖ The government’s regulatory interest in community safety can. Good for D:  Right to counsel (appointed)  Right to testify  Right to present witnesses  Right to cross-examine government’s witnesses  Burden of proof is on the government to show reasons for detention by clear and convincing evidence Bad for D:  Rules of evidence do not apply (hearsay and proffer O. in appropriate circumstances. so it is a more limited detention. -17- .

However. Analogies of the dissent: (p. o Detention of person acquitted of bad crime o Detention of convicted felons after completion of their sentence  Problem with this argument: SCOTUS later decided that you can do this.Encouraging and Mandating Charges o Prosecutorial screening and ―must-charge‖ policies—mainly for domestic violence. Charging: 1. C. but suggested. 7 pg. then we don’t need to have it because it’s going beyond normal detention. so detention may be necessary as a means to achieve that end. o In the reading there are examples of different state statutes encouraging prosecutors to prosecute these offenses. o Detention of juveniles or mentally ill o Good legal argument (not from case): if preventive detention really fits with the traditional rule. 124)  Court allowed state to detain sexual predators after they have served their sentence in order to protect the community. you could create a policy that balances factors like evidence.  Often no criminal matter is involved. o Declination policy points: Resource allocation Justice Proof No deterrent affect if no prosecution 2.Police and Prosecutorial Screening o Anti-declination policy points: Having too defined standards may be ineffective because it will make it easier for criminals to evade the law. o Not mandatory. o Detention of those who threaten witnesses or flight  Lack the same level of competence as adults: more of a regulatory responsibility for the state. (n. o Government has the right to make sure that there is a trial.  Response. It doesn’t allow prosecutors to choose cases based on the weight of evidence. -18- . 807) o Detention of person never charged. more excessive in relation to the regulatory purpose.

creating a welt on his arm.Selection of Charges o Selection of Charges: Up to prosecutor when to bring charges and which charges to bring. would we charge under the wobbler statute or the other? The other because the wobbler includes additional requirements. o Mandatory way of limiting prosecutorial discretion  Problem: it’s very difficult to say that you should charge in every case. 175): Woman apparently drove drunk. How should the prosecutor decide which charges to bring? o Federal rule: to charge the most serious offense consistent with the defendant’s conduct that is likely to result in a sustainable conviction. She offered polygraph evidence to support her claim. By ignoring the injury and charging the defendant under the other statute. She argues violation of equal protection: Penal Code section 243. but she alleges that she was under the influence of the date rape drug. each attorney shall adopt written guidelines governing the attorney’s charging policies and practices. There was an additional statute section 243 that made battery punishable as a wobbler offense.  Problem: prosecutor can manipulate a way around the system by charging a lesser offense.1. o People v. Often the alleged conduct could be punished under multiple statutes. These rules mandate a specific sentence for certain offenses. If we were in federal court. Wilkinson [2004] (pg. etc 3. California excludes polygraph evidence and she was challenging the constitutionality of that policy. Wobbler (judge gets to decide whether it’s a misdemeanor or felony). o Federal law has many mandatory sentencing rules. which required that a defendant who battered an officer (whether it resulted in injury or not) be charged with a felony. She lost After being stopped by police. the prosecutor is spared the burden of proving -19- .o Legislative method of coercing prosecutors that has had a bigger effect than ―must-charge‖ policies are mandatory sentencing rules. she committed a battery against an officer. o Minnesota: Does not require charging in every case.

Has to pass rational basis test. The legislature had a purpose in creating two distinct sections because when 243.1 was the only existing statute.  Then the prosecutor offered to dismiss the battery charge if defendant would plead guilty to the misdemeanor of DUI. o When is it appropriate for a prosecutor to use a greater charge to induce a plea to a lower charge?  It is clearly WRONG to charge a felony if you don’t have sufficient evidence to prove it. Defense refused. What if we were in Minnesota? Which statute would they use? Lawyers are allowed more discretion. which would be further reduced to an infraction if she successfully completed probation. o In that circumstance. just to pressure the defendant into a plea agreement to a lesser charge. but the prosecutor would be satisfied with something less.Grand Jury Screening o Grand jury is a very low hurdle to get over.  The more questionable situation is: where there is clearly sufficient evidence to convict for the felony. The court decides there is a rational basis for the distinction b/c The court decides that there could be a battery that happened not to cause injury and yet it deserves higher punishment than a lesser battery so both statutes are needed. Defense refused. o Should this practice be allowed under ABA rules?  ABA standards advise prosecutors against bringing charges greater than necessary to reflect the gravity of the offense or charges where there is insufficient evidence to support a conviction. so they could choose either one. should you charge the felony? 4. these offenses were not being prosecuted often enough.  In this case. the prosecutor offered to dismiss the felony charge if defendant would plead guilty to a misdemeanor battery. -20- .  Many observers claim that prosecutors routinely ―overcharge‖ cases in anticipation of plea bargaining negotiations.injury and the trial court is precluded from treating the offense as a misdemeanor.

Preliminary hearings have a right to testify and judicial review. Success of indictments goes down where the defendant has a right to testify. no judicial review of evidence and hearsay is admissible. preliminary hearings.depending on the jurisdiction. outlining the essential facts charged. Following the arrest. The complaint is meant to give the court probable cause. initial appearance. hearsay is not allowed and there is judicial review for sufficiency of evidence. This is in contrast to preliminary hearings. however hearsay is also allowed. 24-48 hours later there is an initial arraignment. it may mean that prosecutors only bring cases with sufficient evidence. Whether it’s an indictment or information jurisdiction the more important issue is what the law is in regard to three issues: Does the D have a right to testify? Can hearsay be admitted? Whether the grand jury minutes will be reviewed for sufficiency of the evidence for probable cause? Majority and federal approach is not pro-defendant. o Overview: Most common kind of case.    Main argument in favor of ―ham sandwich‖ view of grand juries is the high percentage of cases (high 90’s) that the grand jury indicts when asked.  What happens next depends on the jurisdiction: -21- . o The fact that there is a high indictment rate does not necessarily mean that the jury is loose with indictments. a complaint is prepared and filed with the court. No right to testify. etc. or first appearance…. either on recognizance or bail. The standard is equivalent to that required for a court to issue an arrest warrant—probable cause to support arrest. o Maybe the strongest evidence that prosecution is not doing its job is the disparate amount of indictments from grand juries vs.  Date is set for trial between 1 and 3 weeks later. The person is taken to a police station or jail where the person is booked. At this point counsel can be provided for the defendant if necessary. or kept in jail. An initial determination is made as to whether the D should be released. where there is a much lower percentage of indictment. adjudication begins after a suspect has been arrested for commission of an offense.

when you look at the standard Why would the defense counsel seek the attendance records? Most GJs do not even allow for defense attorneys to be present What is the justification for this? Efficiency? Michaels says its not the only thing going on—secrecy too GJs two roles Sword—investigating crime -22- . If everybody has to be there. indictment. it would have to happen in one day and one police officer would have to give all the statements Efficiency is more important in the GJ stage than at the trial. HELD: The GJ might have missed some non-incriminating evidence. but would have also missed some incriminating evidence Remember.  Hearsay and illegally obtained evidence is admissible Indictment jurisdiction: All or some felony cases must be prosecuted with a grand jury indictment unless the D waives the G. since some was exculpatory. the issue for the GJ is whether there is enough evidence to warrant a trial RULE: Under the Federal Constitution. 2002) Grand jury heard the evidence (over a few days where some jurors were absent) and 12 voted to indict D argued that all 12 must have heard all of the evidence. o About 19 states and Federal government o 5th Amendment requires this of felonies. How is this justifiable? No liberty rights are yet at stake—only determining whether there is enough evidence to go to trial. the prosecutor is not obligated to turn over exculpatory evidence in the GJ hearing.  This is NOT incorporated to the states. o 31 states o Prosecution calls witness to establish probable cause (mini trial) o Preliminary hearing: right to counsel. The court disagreed. cross examine. present witnesses.J.  Information jurisdiction: No indictment or grand jury is required if the prosecutor provides an information (quite similar to the complaint). so it is up to them whether they want to require indictment or not. o Wilcox (Mass.

without interference by the other. enact laws to punish offenses against peace and dignity by exercising their own sovereignty.S. -23- . not that of one another. o HELD: There are two sovereignties that can each. Many economic and other activities cross state lines. v. and the criminal codes of most states and the federal government now reach much of the same conduct. their testimony will be admissible in most jurisdictions GJs are sworn in. if they are later unavailable. Jeopardy and Joinder: 1. Lanza: Lanza was prosecuted under state and federal laws for the same conduct and argued that the state and federal laws were punishing the ―same offense‖ and therefore violated double jeopardy. the witnesses for the state will be subject to cross. but their testimony cannot be used later Chance to get another ID while fresh Chance to sum up—not allowed in GJs D. double jeopardy does not apply between a state and federal prosecution.Multiple Sovereigns o Federal and state governments have overlapping responsibilities for enforcing criminal laws. o U. o Dual Sovereignties Rule: As a Federal Constitutional matter.Shield—protect defendants from baseless prosecution Given all the advantages for the prosecution— Secret Only state witnesses No defense counsel So why would any prosecutor instead proceed with an information? Michaels did not seem to answer—giving reasons for GJ In political cases—police shootings—might want to proceed with a GJ Chance to impress the defendant with the strength of the prosecution’s case—to perhaps try to force a plea Efficiency/volume issue—although some big cities have GJs Tradition—preliminary hearings instead of GJs Cheaper to do a preliminary hearing Preserving testimony—at a prelim hearing. It also doesn’t apply to different states.

o A few states have rejected the dual sovereignty rule. what the double jeopardy bar prohibits successive prosecutions for the same offense. The other sovereignties doing so does not vindicate or take that right away.Majority rule. o Petite policy: Federal prosecution for the same transaction will be authorized only if the prior prosecution left substantial federal interests demonstrably unvindicated. o Reasons against multiple prosecutions for the same offense: Judicial efficiency Best case argument: Government must have sufficient evidence and are not allow to repeatedly try cases until they get the desired result. bar re-prosecution for the same acts or transactions o Most states have ISD (interstate detainer agreements): states will hold or transfer a defendant from their state to another state for criminal prosecution or vindication of that state’s policies and criminal law. o Ex: Crime A and Crime B are the same offense. You should only be punished once for a single wrong. Rationale: each sovereign has its right to see that justice is served in its jurisdiction. Double jeopardy does apply within different jurisdictions within the same state. Many of the state statutory bars.Double Jeopardy o Constitutional bar of double jeopardy only prohibits prosecution for the ―same offense. the government could charge a defendant with Crimes A and B and charge him/her with both crimes if the court determines that the legislature wanted to permit that. Guilt: we don’t want to prosecute for the same offense again after we’ve determined guilt and punishment. The rationale is that the right to prosecute originates from the same sovereign.1: Rodney King’s Attackers -24- . o Justice department internal rule that cannot be enforced by courts. 2. Finality of decisions Undermining sanctity of verdict Innocence: having multiple trials creates too great a risk that innocent people will be convicted. A few states have statutory bars on dual sovereignty/double jeopardy.‖ o Federal constitutional double jeopardy bar does not prohibit two prosecutions for the same offense in a single case if the legislature intends it. etc. Many of these statutes are broader in their understanding of double jeopardy than the federal Constitution. o Problem 4. but some states have certain exceptions in narrow categories like certain narcotics offenses.

 Taylor was convicted of assault in second degree. Federal constitution does not bar multiple prosecutions within the same proceeding. o What constitutes the ―same offense?‖ Robert Taylor v. Probably Congress doesn’t want offenders to get two sentences for one crime. and Crime Y is the crime to be used for Crime X. Only bars successive prosecutions.California State Court acquitted all the officers of the excessive force and assault charges. then X and Y are the same offense for DJ purposes. Courts look to the legislature’s intent. so in a state case. the separate element must run both ways) and robbery contained an element that assault did not. EXCEPTIONS: If the definition of crime X involves committing a crime. Why? They were in the same prosecution Blockburger test: Does each offense contain an element that the other offense does not? If each offense does contain an element that the other offense does NOT they are NOT the same offense for double jeopardy purposes. 237) Facts:  Taylor took advantage of a man that stopped to help Taylor with his car. it’s up to the state to decide whether the legislature intended to punish the offenses with separate convictions and punishments. robbery in first degree. Suppose the offenders are tried -25- . and possession of handgun by a minor. Stamp: D’s robbed a store. He struck the man in the head with a gun and stole his car. Robbery required proof of theft (NOT required by assault) Assault required proof of physical injury (NOT required by robbery) Taylor’s double jeopardy claim should have failed right out of the box. federal court will determine whether the legislature wanted to punish the offender for both. Commonwealth [1999] (pg. but it is NOT constitutionally mandated. it does not bar multiple prosecutions within the same proceeding. If two offenses come out as the same offense under test. causing the death of a store attendant by heart attack. Analysis: Robbery contains an element that assault does not (BUT to pass the test.

to prove the robbery it can be tried without adding the fact that Taylor hit the man with the gun. Dissent: the dissent is importing the ―same conduct test‖ into the Blockburger test. intoxication manslaughter and reckless manslaughter. If the government included mention of that conduct (hitting with gun) as a part of the trial. Dixon then overruled the expansion and reinstated Blockburger as the exclusive test for Grady: established ―same conduct‖ test. Corbin expands double jeopardy protection and U. then there would be a bar to a subsequent conviction for assault. any subsequent prosecution of Taylor would fail. DICTA exception: A person CAN be prosecuted for Crime B after being convicted for Crime A IF the prosecution could not have brought Crime B with due diligence (usually because the second crime hasn’t yet come to fruition) Grady v. NY test (pg.  He was acquitted of all counts of manslaughter. ***KNOW THE THREE TESTS FOR THE EXAM** 3. Rule: You cannot be prosecuted for different offenses where they arise from the same conduct for which the offender was convicted. 245): ―same transaction test‖ (broadest of the three tests) Provides broader protections from double jeopardy than constitutionally required. Crime A (the robbery) is the crime being used to prove Crime B (felony murder) so they ARE the same offense for double jeopardy purposes. Is there a way that there could have been a robbery (when threatening with gun to steal truck) prosecution of Taylor that would NOT preclude a subsequent prosecution for the assault (when he hit him with the gun)? Yes.  State charged him with DWI. Is this allowable under double jeopardy? No. as a result he caused the death of his friends. Under this test.Collateral Estoppel and Compulsory Joinder o Ex Parte Philip Taylor [2002] (pg. -26- . v. Also this test bars prosecution in a state where the offense was prosecuted in another state.and convicted for robbery and then the state brings a prosecution for felony murder.S. 251) Facts:  Driving while intoxicated. Michelle and Kyla. here.

-27- . Argues that the jury instruction itself. o So what does he base his double jeopardy claim on? Collateral estoppel  TEST: to determine whether collateral estoppel bars a subsequent prosecution courts employ a two step analysis: (1) exactly what facts were ―necessarily decided‖ in the first proceeding. but they didn’t hear this evidence concerning marijuana so they didn’t decide the intoxication by drugs issue.  ―When an issue of ultimate fact has once been determined by a valid and final judgment. Mandatory joinder: Operates to restrict what the state can do.  Sub-rule: should look at the whole record when deciding collateral estoppel. the unlawful killing of each victim is a separate offense.  Later.Joinder and Severance o Joinder (two types): 1. 4. Dissent: Says first jury determined he wasn’t intoxicated by alcohol. 253). the state learned that appellant. Permissive joinder Generally operate to the benefit of the state and the detriment of the defendant. that issue cannot again be litigated between the same parties in any future lawsuit‖ (pg. o Is this permissible under double jeopardy?  For double jeopardy purposes. allegedly told Kyla’s mother that he and the girls were smoking marijuana on the afternoon of the accident. MAJORITY RULE (and federal rule): there is NO mandatory joinder. Key point here: the prosecution knew that appellant’s blood tested positive for marijuana. mainly by restricting the prosecution. the jury was given the words ―intoxicated by alcohol‖ so we can’t be sure that the jury thought he wasn’t guilty of manslaughter by drug intoxication. 2. but there wasn’t enough evidence to show he was high at the time of the accident so they did not oppose appellant’s motion in limine barring any mention of marijuana during the trial. sometime after the trial. and (2) whether those ―necessarily decided‖ facts constitute essential elements of the offense in the second trial. The State now brings a charge for manslaughter for Kyla.

-28- .Whenever a defendant is charged with more than one crime. What about collateral estoppel? (NOTE: In criminal procedure. Hensley moved to have it dismissed because the assault was not joined with the prior charge. A few days after the fight. Misjoinder: when prosecution violates the joinder rule Severance: when the joinder did not violate the joinder rules. So here. and same transaction)? Yes. they must be tried together if they arise from the same transaction. the prosecution has the choice of joining the crime in a single indictment and single prosecution or of trying the offenses separately. Questions for Monday: Why would the prosecution like joinder? Why would the defense dislike joinder? What about when these two are switched? o Differences between joinder and double jeopardy: Decisions about joinder will be much more in the trial court’s discretion than decisions about double jeopardy. but it arises from the same transaction. ON THE EXAM: make sure to note the differences in offenses and specify the different elements on the exam. The prosecution charged Hensley with malicious assault. Getting drunk and assaulting someone is not the same conduct. 269). a victim comes forward regarding injuries she suffered during the fight (eye was shattered by a cue ball thrown by Hensley). Fails double jeopardy because there are separate elements to prove each offense. o Problem 4-3 Compulsory Joinder (pg. this is a type of double jeopardy) Not essential elements of the second offense Destroying property and being drunk are probably not elements of the assault Rule 8(a) of West Virginia Rules of Criminal Procedure (pg. Does this rule operate like any of the three double jeopardy tests (same elements. but was inappropriate anyway because of prejudice. under the same transaction test. Two years later. Defendant has opportunity to challenge the prosecution’s choice. 268) Facts: Hensley gets into bar fight and was charged with misdemeanors. an incident report of her injuries was given to the prosecution. same conduct.

is Hensley the clear winner here? No. So. joinder would avoid DJ issues o But that is not at risk here o Why would the prosecutor want severance?  Test case—trial run—make adjustments  To limit the effect of a terrible witness  To wear down the D’s resources  More chances of conviction  If there is a conviction on the first charge. United States (1996) o Long wants severance for armed robbery in one location and murder in another o What are the advantages and disadvantages of joinder & severance?  Why would the prosecutor want joinder?  Easier use of evidence  Efficiency argument—easier to have witnesses testify once  Jury may infer evidence of crime one for guilt of crime two  More likely to look at Long as a criminal  But you cannot make that argument—against the rules of evidence  But still helpful to the prosecution  Jury may accumulate evidence of different crimes to infer guilt  Two borderline convictions may add up  In some cases. tie goes to the prosecutor  Facilitate inconsistent defenses  Why would the D prefer joinder?  Cheaper—but D does not care if people have to testify multiple times  Increase the likelihood of concurrent sentencing o Black letter  Almost all jurisdictions allow joinder for all charges to arise out of a single transaction or from multiple transactions involving a common scheme or plan. there is an exception where. o Long v. if the prosecuting attorney doesn’t know about the offense and has no reason to know about all of the offenses then they don’t need to join the transactions. or that are similarly connected together -29- . they lose. the D may plea for the second o Why the D would want severance?  Can adjust their strategy in the second case  But if D loses either case.BUT.

sophisticated o Young Tough  Lived together. if the joinder is based on the same character ground  Is the fact that cases were improperly joined— misjoinder—is that the only way to get severance? o No o Michaels compares joinder to relevance and misjoinder to irrelevance  Cannot be joined unless proper  Even something is relevant. it may still be prejudicial  FRCrimPro 8(b)  Not quite the same as joinder for charges because there is no same or similar character provision o Michaels’s Case o 16 Counts of Murder—actually 4 deaths o Old Burglar  50s. supported by the older guy  Looked up people selling stuff in want ads and killed them  Or posed as an antiques dealer and killed more people o Stole then left town  -30- . sexual relationship  Uneducated. 20s. tough. it may not be admitted if it is prejudicial  Like FRE 403…?  Whatever the trial judge decides is likely to stand up—difficult to overrule o Joinder & Severance of Ds  Similar to j & s of multiple charges  Rules permit joinder in multiple cases but the Ds can obtain severance if the joinder is prejudicial  Even if joinder is allowed. former hotel burglar.Majority allow for joinder of charges that are of the same or similar character  Significant minority do not include the same or similar character  What about Ohio? o OR Crim Pro 8(a) follows the federal approach—including same or similar character  What about compulsory joinder? o No mandatory joinder in Ohio o 7 states including Vermont allow automatic severance at the D’s request.

o In Bruten. the other jurors would be removed o 404 Prior Bad Acts -31- .o Made their way to Reno. Confession to police. But not admissible against B because it is hearsay—no chance to cross A under oath. Admissible against him at trial. Ct. the S. A says Def. maybe one will be convicted or acquitted already o Prosecutor Burns  Wants to join  Tom points to FRCrimPro 8(b) o May charge Ds if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions o If we try them separately. says you cannot have a jury instruction that says the statement cannot be admitted or else it is an auto mistrial because there is no way jury instructions would help the jury keep the hearsay straight  Also could use dual juries  But a ton of the evidence is actually the same—so when some evidence against one D is being presented. they might both be acquitted. got caught. and blamed each other for murders  Intentional murder & felony murder for each victim (16 total counts) o Defense Counsel Boyd  Wants to severe the two Ds  Defenses are mutually exclusive—blaming each other  And one blaming the other would possible leave them liable for felony murder  Going second could be an advantage—knowing the witnesses. severance of Ds is very hard to obtain o About half states used to permit severance on demand. now almost no states do o The Supreme Court stated in 1993 that Ds are not entitled to severance just because they might have a better chance of o Only appropriate if it would confuse jury—but not necessary if there is proper jury instructions o Def. fought with each other. B and I did this together. but together one will probably be found guilty o Why do Fed Courts encourage joinder? o Efficiency—long trial and lots of witnesses o Bruten problem (from evidence) o Without a Bruten problem.

Fl): Privilege against self-incrimination Kicked off the ―two-way street‖ movement Now all but a few states have these provisions. because the jury does not have to believe that you robbed A & B so long as all of them believe you robbed someone.  If. then the appellate court can go back and consolidate into one count. Much of this centered around the concern that the defense would be giving information that would facilitate their conviction and would therefore violate the 5th Amendment In 1970 (Williams v. only a small minority of states had significant provisions allowing the prosecution to discover information from the defense.  If the objection is after the conviction. the remedy is usually limited to resentencing. you can be charged.  Usually in conspiracy cases (conspiracy law is very vague) Discovery: Prior to 1970.‖) Three main reasons why it doesn’t violate the 5th Amendment right against selfincrimination 5th Amendment only protects against ―compelled testimonial‖ selfincrimination -32- . the court will usually consolidate it into one count. RULE: The key question in severance of offenses is whether offense A will be admissible in offense B and vice versa—even if they were severed. o If the D objects in a timely manner. If the objection is after the conviction. Undermines the requirement of unanimous view. (So it’s a ―two-way street with a few more lanes in one direction than the other. it is waived. o Multiplicity: Same charge in more than one count o Can prejudice the defendant because it allows consecutive sentences for one robbery (involving a knife and gun). o If the D objects in a timely manner. Some states have provisions where there is slightly more of a requirement on the prosecution than the defense to provide discovery. o Duplicity: Having two charges in a single count o Charged with robbing A & B in a single count o Unanimous verdict requirement: evidence is weaker.  Therefore the efficiency argument wins the day E. o Might look worse to the jury that there are two crimes. the remedy is to force the prosecution to choose one charge and eliminate the other or the prosecution can reindict where prosecution goes back and fixes it. however the D raised the issue and the court ignores it.

If it’s an insanity defense. expert reports. Ct. Constitutional Discovery  Brady Material (See Discovery from the Prosecution)  Guilty Pleas (FN 4 pg. About half the states and the federal discovery rules have this contingency rule where the defense doesn’t have to give discovery for the most part. The court said forcing the D to tell ahead of trial what he’s planning to tell at trial. What is discoverable? Defenses: Almost all jurisdictions require the defendant to provide notice (and some explanation of the nature of the defense) if the defense is alibi or insanity. -33- . The argument against it is that the reality is that the defense need this information so badly that this is a choice in name only. the court responded by acceleration doctrine. it was simply an acceleration of when the D revealed the defense he planned to reveal at trial. etc) Other things (exhibits. has indicated that discovery can’t be unbalanced against the defense (so the defense can’t be required to give more than the prosecution is required to give) The ABA doesn’t have a contingency like this. etc) Prosecution is only entitled to get these other things from the defense if the defense is entitled to get them from the prosecution The S. Ohio follows this approach with regard to witness lists and scientific reports 1. Even though the statements were testimonial. but where they request discovery then they must first give up theirs. police reports. is not the kind of compulsion that the 5th Amendment protects against. The waiver rationale: The defense’s right to discovery from the prosecution only becomes effective when the defense agrees to provide the prosecution discovery of the defense’s case.Acceleration doctrine: the issue in Williams was an alibi defense (In Florida. the D had to give notice both of the nature of the alibi and of the names of witnesses that the D would call in support of the alibi). most jurisdictions require the defendant to submit to a psychological evaluation. 297):  Can take guilty plea without turning over Brady material. A minority of jurisdictions require disclosure of other defenses as well (self-defense. there was no compulsion element. witness lists.

 Prosecution is responsible for any evidence in the possession of the state. o Issue went from whether there should be discovery to how much discovery there should be o Steadily broadening the scope of discovery  Federal rule is at the restrictive end of the spectrum (of how much discovery the defense gets in criminal cases)  About 15 states have rules similar to the federal rule. and evidence from the autopsy that indicated the stabbing was in a downward motion (as if the attacker was standing over A).o The rule extends to impeachment material but not to exculpatory material 2. along with evidence from a neighbor that heard D say he ―was going to get‖ A. the prosecution is still responsible. Discovery from the Prosecution  Brady material: o Materiality rule: prosecutor is only required to disclose if the evidence creates a reasonable probability that the outcome would have been different if the evidence was available. D claims A attacked him first and only then did he retaliate. Even if there is no negligence on either side in preventing the defendant from obtaining some material in possession of the state. This distinction does not make a difference under BRADY.  ABA proposed significantly broader rules for discovery 3. Clearly material but does it count as -34- . o Strict liability offense  Hypo: D has stabbed A to death. K had a previous conviction for perjury? Does this count as Brady material? o Yes. It doesn’t directly exculpate the defendant. impeachment material counts as Brady material o It counts as exculpatory even if it doesn’t show that D isn’t guilty.  Can’t be material if it isn’t exculpatory  Brady is an affirmative duty on the prosecution—the prosecution must disclose Brady material even if the defense doesn’t request it. Statutory Discovery  The discovery debate in the 20th century lead to a review of discovery in all cases. K (testifying as to the stab wound evidence)  What if Dr. State relies on the fact that A had no weapon on him. D is charged with murder and his defense is self-defense or in the alternative that the killing was in the heat of passion.  Introducing new character: Dr.

Ct. a statement was revealed that showed that a witness saw A attack D first. no difference between willful and intentional withholding of evidence. we want to create the greatest incentives possible for the state to use maximum care in giving exculpatory evidence.  A strong minority of states have granted defendants a more favorable materiality standard in cases where the defense makes specific requests for the information. o This IS discovery in criminal cases and can be a very important part of the case o Hypo: State relies on the fact that A had no weapon on him. exculpatory? Fairness and Accuracy concerns are still present and very important in this type of scenario. along with evidence from a neighbor that heard D say he ―was going to get‖ A. o Asking by the defense may help defendant because if the prosecution does not respond to a specific request the evidence is more likely to be material. the defense wanted to use them. Maryland) based on prosecution’s failure to provide exculpatory evidence (also often call Brady material). and evidence from the autopsy that indicated the stabbing was in a downward motion (as if the attacker was standing over A). Is this appropriate? Yes. What if D’s attorney didn’t ask for all the exculpatory evidence? Irrelevant because the prosecution has an affirmative duty to provide ALL exculpatory evidence. Suppose the prosecution wasn’t aware of the report? Irrelevant. -35- . What should happen? Conviction set aside and new trial ordered (S. o o In criminal cases (in comparison to civil cases) there is almost no discovery. established this in Brady v. o Same standard as materiality: reasonable probability of different outcome Adams had two prior convictions for assault. After the conviction. What if the prosecutor asked the police for all files and then went through all of the police files and still didn’t find the report? Would still be a Brady violation In effect this is a strict liability rule. can they? o Would the materiality inquiry be affected by whether or not the defense specifically requested prior criminal convictions?  A’s record can be exculpatory for D because it supports his claim that he was acting in self-defense  Same standard either way: you must disclose if there is a reasonable probability that it would affect the outcome.

Washington quoting from Brady line (Agers)) This test is easier on the prosecution than beyond reasonable doubt.‖ It’s on the line whether the evidence is material or not. constitution requires that defense is given sufficient time to make use of the exculpatory evidence. Adams has two prior convictions for assault? Evidence not turned over is that the deceased had a criminal record for assault. Second option is that there is a mistrial if there isn’t sufficient time. Exculpatory Standard: You can always slime the victim. however it is harder on the prosecution than a standard of ―more likely than not. Did to ask what the other evidence is in this case? The totality of the circumstances is very important in determining whether the evidence is material. What if Mr. We want to be sure that the D has a fair trial. Rules of Evidence and propensity go to the defendant not the victim. etc. Also. so we are not concerned with fault (Prosecutor’s fault because he didn’t give evidence. there is no other evidence of A’s habit of aggressive behavior.Difference between negligence and strict liability standard are unlikely to alter police behavior Strict liability standard is easier to litigate (negligence is a difficult standard to apply). What if the evidence comes up at the start of the trial? Defense would be entitled to a continuance. What makes it quite plausibly material is that the evidence against D is pretty weak. but is it material? (These are SEPARATE questions) All Brady violations share a uniform materiality standard: the D must show a ―reasonable probability‖ that the result of the proceedings would have been different if the prosecution had disclosed the exculpatory evidence.). This evidence is exculpatory. Exculpatory means could help the defendant. Similar to standard for ineffective counsel (Strickland v. but it may not be persuasive. -36- . Suppose the state responds that the police turned over the witnesses statements after discovery was completed so the prosecution wasn’t required to turn it over? All discovery obligations are continuing duties until the trial is over.

Questions: -37- . 4. so the criminal came out a few minutes too early and his plan was foiled. Since the playing field in criminal cases is already tilted toward the defendant if the discovery rules are not reciprocal then the balance is tilted too much in favor of the defendant. criminal defendants already have many rights that the prosecution doesn’t have. unlike the civil side rights are not reciprocal (the counter-argument is that the prosecution also has a lot more resources and other advantages that the defendant does not.)  Disclosing this information may endanger witnesses (we’re assuming that because they are criminals so they will do illegal things. o Cons:  Discovery is not reciprocal. Superman set the clock ahead. but this contradicts the presumption that the criminal defendant is innocent until proven guilty)  It is easy for the defense to win in a criminal case (burden of proof for prosecution is proof beyond a reasonable doubt) so they don’t need additional help by requiring the prosecution to disclose everything. o Why is this more so in criminal than civil cases? Higher stakes in criminal cases. but the defendant can be prepared to lie or fabricate evidence. the easier it is to frame a case.  The more you know about a prosecution’s case. Discovery from the Defense o Pros and cons of allowing the defense to discover the prosecution’s evidence: o Pros:  Defense can prepare a better defense if they know what the prosecutor is arguing (fairness argument—levels the playing field)  Lends to accuracy in trials because the defense will be prepared for the prosecution (also it narrows the issues so it may aid settlements (or pleas) to avoid trial or focus trial only on issues that are in dispute. So it is more likely than civil discovery to lead to perjury. In a civil case. Speedy Trial: Video (Superman episode: when Michaels fell in love with criminal procedure) A murderer walled himself in a mysterious cube and he would stay inside the cube until the statute of limitations had run. You may not be intimidating witnesses.F. Response: prosecution also has advantages that the defendant does not. etc o Some say that in a criminal case. there is a more even playing field.

 A crime is complete when all the elements necessary to prove the crime have occurred. The statute runs from the time the crime is completed until the start of proceedings.If Superman had not tricked the criminal. would it be constitutional to revive expired claims in that way? o Ex post facto law and is unconstitutional: cannot revive a dead claim. while other states bar claims that exceed the statute of limitations if they are based on recovered memory. most states will not apply the statute of limitations 1. o In some jurisdictions. continue with D’s life. would the man have had a defense through the statute of limitations? No He could still have been indicted while in the cube Most states do not have statutes of limitations apply to murder If you are not reasonably available. o If the defendant is unavailable then the statute will not toll. o When does it end? o At the start of proceedings o An indictment is sufficient to start the proceedings. o There is no consensus among the states about the proper technique for doing so  Some states will toll the statute until the victim is an adult  Some will extend the statute for many years (10-20 or more)  Some states require that the evidence be from recovered memory. Sense that it is over. the time will not count.Pre-accusation Delay o Statutes of limitations cover pre-accusation delay. o Deterrent purpose of criminal law: deterrence is more effective if the punishment is swift. o The court did not determine whether you might extend the statute during the current SOL. o When does the statute of limitations start? o It will not begin until the course of conduct ends or until the crime is complete. -38- . o o What if a statute of limitation is 10 years and in year 12 the legislature extends the statute to 20 years. o Why do states have statutes of limitations? o Accuracy: witnesses will forget things over time and evidence will no longer be fresh so the trial may be less reliable o Repose: the charged defendant deserves a chance to put the case or crime behind them. an arrest warrant or police report would be sufficient o Many states have added an additional exception for child sexual offenses.

has never seen a case where preaccusation delay was unconstitutional Constitutional Aspect of Pre-Accusation Delay: o Two Components: o Defendant must ACTUALLY be prejudiced o If prejudiced. Ct. the speedy trial right only attaches after you are accused. -39- . The value of the punishment can diminish over time. o Should the burden be on the state of showing whether the burden was reasonable or should it be on the Defendant to show it is causing prejudice? o Prosecution:  The burden should be on the prosecution because they are in the best position to know the cause of the delay. said claims should only be found unconstitutional ―If it violates fundamental conceptions of justice‖ o S. This raises the probability of improper motive (on the part of the government to now prosecute. 328 note 1: Due process  S. o What if the man in the cube has no statutory claim for pre-charging delay. so long as they’re looking. it is not unconstitutional. o If part of the reason for the delay was due to continued investigation. is there a constitutional one? o 6th Amendment (due process) right to speedy trial?  No.  This is an opinion by Marshall: surprising.  Police need not actually find additional evidence. Ct. Ct.P. if: (1) the Defendant is actually prejudiced by the delay and (2) the delay is unreasonable—the unreasonableness is a combination of the length of the delay and reason for the delay. etc)). not relevant to pre-trial delay o Pg. or on the part of witnesses to now expose to liability after waiting (blackmail situations.  S.  Retributive impulse may linger longer for more egregious offenses o Prosecutorial abuse (Michael’s favored reason): cases that have run up to the SOL have generally been passed over by earlier prosecution. then was the pre-accusation delay unreasonable  Reasonableness is a product of the length of the delay and the reason for the delay. has said that pre-accusation delay can violate D. Ct. but his reasoning was that if there was not  S.o Retributive purpose: the demand for retribution may lessen over time. said delay is unreasonable if it is solely to gain a tactical advantage.

According to Michaels. as well. 2. 2.  These are not so much ―should be‖ arguments as they ―are‖ arguments. It is up to the prosecution as to who should be charged. The book says 1 year is enough. If there is no presumption of prejudice. 8 month is long enough delay to do Barker inquiry.‖ Speedy trial right may start once you are arrested because it is designed to protect liberty. o This question goes back to the prosecutorial discretion discussion. The statutory aspect comes up in more cases than the constitutional approach. etc. then they will be pressured to rush the prosecution. with what they should be charged. hurt defense -40- .Speedy Trial after Accusation o Constitutional Aspect of Post-Accusation Delay: Sixth Amendment guarantees the accused the right to a speedy and public trial. the Supreme Court has declined to set a clear length for presumptive prejudice. The length of the delay In Barker the court discussed certain periods of delay as being presumptively prejudicial.  Some of the reasons for prosecutorial discretion would apply here. is this a conclusive presumption? No. Lower courts have found it sufficient where it approaches a year. The reason for the delay (3 categories) Those that weigh heavily against the state Purposely delaying to assist prosecution. Most states mandate the Barker balancing test: 1. generally presumed prejudice means that the delay is enough to require the court to go through the rest of the Barker test. when they should be charged. Why does not the constitutional right to a speedy trial count toward the preaccusation stage? The Sixth Amendment guarantees the right to the accused.o Defendant:  If the burden is on the prosecution. but right to counsel does not attach upon arrest. so the right does not attach until either the arrest or commencement of normal charges begins because until that point there is no ―accused. then the court will not exam the remaining factors.

then he/she gets a pass on this factor. valid reasons (least control) Trying to locate witness 3. what is the difference? The state lab is responsible for funding the crime lab so the state is to blame. so this sounds more like trying to locate a witness. length. Textual basis for the right maybe makes it stronger. If the defendant does not know he is charged or is not represented. state negligence. Whether the defendant was prejudiced by the delay Prejudice. This information could have been exculpatory.  State v. and Failure to assert the right does not mean that you automatically lose because it’s a four part balancing test. It doesn’t say you have a right to a speedy trial unless you are prejudiced. Prosecution was waiting for lab results of tested evidence. David Magnusen [1994] (pg. The only thing that is in this test and not in the pre-accusation test is: whether the defendant asserted his right to a speedy trial. Whether the defendant has asserted his right to a speedy trial. The reason for this is the special nature of speedy trial where the defendant is in a position to encourage delay or want to put off the case. Anxiety and delay Loss of liberty Witnesses fading memories and preparing defense Why is prejudice a threshold issue for pre-trial. 4. It is not necessary that the blame be on -41- .Those that weigh against the state. but it is very hard to win if the right is not asserted. and reason are three aspects of preaccusation delay and were part of the Barker test. waiting on DNA results) Court congestion. Being arrested or subject to indictment is prejudice so we don’t need to make it a threshold. When you are an accused. but only a factor in post-trial? Textualists: Sixth Amendment speedy trial right has textual basis so it might make sense that it is easier for the defendant to invoke that right. The frequency and force of objections is to be taken into account in the speedy trial context (A few good man and Demi Moore fervently rejecting after Tom Cruise). but to a lesser degree (more control. Those that weigh against the defendant. you’re always prejudiced. 331) Delay in trial exceeding six months.

etc. D is probably more prejudiced by the anxiety and concern factors because A was ―blissfully unaware. The P wants to charge A and D together. When she was arrested this was the first A had heard of the charges against her. memory fading. lost witnesses.the prosecutor. anxiety and concern) D was in jail anyway on other charges and A wasn’t held in jail at all so can there be any prejudice Yes. In reality. there can be prejudice if the case was weakened during this time (memory loss of witnesses. Length of the delay: 3 years because speedy trial clock started at time of indictment so presumptively prejudicial Reason for the delay o Barker Factors Length of delay Reason for the delay Whether the defendant has asserted his right to a speedy trial In A & D hypo from yesterday. so long as it is an organ of the state that causes the delay. who is likely to have a stronger claim of prejudice on this ground? A because she did not know of the charge so she could not recruit witnesses. but learns that A has traveled to South America so the P did nothing. Whether the defendant was prejudiced by the jury (prejudiced by prison time. failure to assert right can’t count against A because she was out of the country and unaware of the suit.  HYPO: A and D are indicted for conspiracy to obstruct justice for A’s attempts to bribe a juror in the D case. etc) Between A and D. She was tracked down 3 years later. A and D move to get the indictment dismissed on speedy trial ground. but may also want to ignore when it benefits their case. She lived under her real name and got law degree. A came back from South America six months after the indictment.‖ No magic formula for balancing these factors **EXAM QUESTION: you could have a question requiring you to balance these factors regarding different defendants. -42- . so the burden is on the defendant to assert the right in a timely manner or forfeit the right. Why is how and when you make the demand important? The court has determined that this is a right that D’s may want to assert in some cases.

Some statutes require a certain amount of days  70 days for federal statute (on the short end for jurisdictions providing statutory time (long end up to a year)). o Federal and majority rule  Many jurisdictions using this add extensions for ―good cause‖  Alternative approach is to be less precise with the days. Variety in speedy trial statutes o Most important issues the jurisdictions are split on that categorize speedy trial statutes: 1. Remedy  Dismissal with prejudice (can’t bring charge again) o Majority rule o Problems:  Courts will do everything they can to extend the time because the remedy is so disproportionate to the perceived harm. the gap has been filled somewhat by statutory provisions o Statutory speedy trial is where most of the litigation is. Tolling of speedy trial clock  List specific reasons for tolling o Federal statute  Determine when the clock has tolled by common law development within their jurisdiction  NOTE: delays at the defendant’s request are not charged to the government o If neither side says on the record whose side is to be charged the time. then it is hard to go back and determine.**  As with pre-indictment delay. o Must be aware of the statutes in your jurisdiction when practicing Motivating force for federal speedy trial act is fear for defendants out on release while pending trial. We don’t want criminals on the street by default. The purpose was to increase the trial turn-around time so that ―criminals‖ weren’t on the streets for an excessive amount of time.  Dismissal without prejudice (can bring case again but must reindict and start over)   -43- . 3. going with a standard like ―reasonable time‖ 2.etc.

Enforcement of Pleas H. Guilty Pleas: 1.The Right to a Jury Trial o Juries lack expertise and maybe even intelligence. Juries: 1.Subjects of Bargains 2.Limits on Plea Bargains 3.o Federal rule leaves it very much in the trial judge’s hands. Louisiana) This right only applies to serious offenses Federal rule: punishable by more than 6 months imprisonment -44- . because it is the public who is being protected by these laws or punishment of criminals Increases legitimacy and public confidence in the courts The verdict may be more generally acceptable to the public if done by jury Community involvement lends legitimacy Community lends its own expertise in a way so the verdicts may be ―better‖ or more ―fair‖ Will the case be tried by judge or jury? Sixth Amendment: accused shall have right to speedy and public trial by an impartial jury Does this apply to the states? Yes incorporated through 14th Amendment (In Duncan v. jury and executioner is the state with no public power Public input necessary. they slow trials down Why not just dispose of jury trials altogether? Disposing of jury trial could lead to oppressive state power: judge.Validity of Pleas 4. o Problems:  Doesn’t provide any kind of incentive  defendant is in same place he was in before (amount of prejudice is not lessened)  Most prosecutors G. o Jury outcomes are unpredictable o Expense.

designation as a sex offender made it serious. If EXACTLY six months it is still presumed petty Many states have stricter trial by jury rules than the constitution requires. trial court has the right to deny jury trial Presumed petty if less than 6 months. Questions:  Suppose the protestors protested for a week now facing 210 days of incarceration—does federal right to trial by jury apply now? o No—look at note 3 pg. it’s the nature of the offense  Suppose denying them a jury trial is the reason for giving them a lesser offense?  Knowing the constitutional rules is not sufficient in an area. gives the right to trial by jury Less than six months. where the constitution provides so little guidance. not petty so this is still a changing area of law. Dissent:  Says always gives trial by jury in petty theft cases because ―nobody wants to be a thief‖ so in his mind he is applying a version of the older approach by looking at the offense to determine whether it is serious. but additional penalties can make it more serious.Must they actually get the punishment? Punishable is what is controlling. 455) Facts:  Bowers was one of many protestors arrested outside of an abortion clinic  All were convicted of class 2 misdemeanors punishable by fine and maximum of 30 days in jail  Trial court refused trial by jury and then imposed suspended jail sentences Analysis:  Court struck down suspended jail sentences because the trial judge had promised no jail time. -45- . but to actual jail time received—cannot get one day in jail if you do not have counsel appointed for you But for crimes punishable for a year (not six months as in jury trial) State v. 460. however the 6 month presumption is pretty strong (according to Michaels) In a recent state case. Kent Bowers (pg. Court moved to rule like approach instead of multi-factor test: Big factor was prison term Some states look to the actual crime involved (this is exemplified by the dissent in Bowers) Right to appointed counsel Goes not just to punishable. as here.

Voir Dire and Dismissal for Cause o Selection of Jurors  Historically. the venire must be drawn from a source that is fairly representative of the community—―fair cross-section requirement‖  The fair cross-section requirement provides greater protection than even the Equal Protection Clause o Challenges under EPC were based on racism o The party challenging venires under EPC must establish intentional discrimination  Under Sixth Amendment (only in the past 40 years has this been applicable to the states in its application to venires) venires can be challenged -46- . o Until the 1960’s the main concern was that influential and important people be considered. etc) o Only in 1968 was this requirement incorporated against the states. racial issues have dominated the discussion of trial by jury of one’s peers.  How are bench trials handled? o Most jurisdictions allow the defendant to waive a jury and have a bench trial. you must examine the state and local statutes to find approaches to effectuate the constitutional rule. Need approval of court 3. Whose right is it to have a trial by jury? o Common law did not allow (or did not easily allow) waiver of trial by jury o Supreme Court has said that there is no constitutional right to a bench trial  You can waive your right to a ―trial by jury‖ (that’s what we call pleading guilty)  Waving a ―jury‖ entitles you only to a trial by judge. but still a sizeable group 2. Defendant has unilateral right to bench trial  Clearly the minority approach. Current Process of Jury Selection First step is to have a pool for jury selection o This group is the venire (to come)  Under the Sixth Amendment right to jury trial. o Therefore. but they differ in their approaches: 1. Need approval of court and prosecutor 2. an originalism perspective influences our expansion of trial by jury. not a representative of the community (ex: key man system.  Today.

 This does not mean that the D has a right to a particular make-up of the jury  Only a systematic exclusion violates the Constitution o Current test for challenging Venire:  Group allegedly excluded is a ―distinctive group‖ (Race. not age.by other groups and intentional discrimination need not be shown. the judge should have inquired about racial bias Maryland constitutional law controlled this case. federal judges are split  In state courts. he did find a domino box filled with cocaine The defendant requested a question during the voir dire examination of the venire to determine potential racial prejudice (pg. political viewpoint. it is more common for the attorneys to have free reign Andrew Hill v. 470-mid-page). sex. 470) Facts: White police officer was state’s only witness Officer was responding to a call on a particular city block looking for a man in certain clothes who was allegedly carrying a gun The officer found the defendant who fit the description. State (pg. -47-  . the parties determine who actually gets to be on the jury  Some judges do all the voir dire. but more than rationale basis  Voir (to see) dire (to speak) o One you have a pool. while he did not find a gun. some allow attorney to do most of the questioning.  At that point. etc) in the community  D must show that the group’s representation in the venire is unreasonable in comparison to the community from which it is drawn  D must show the under-representation results from ―systematic‖ exclusion of a group (not necessarily intentional or invidious discrimination). but there is some federal constitutional law about this. Trial judge gave a very different kind of instruction Analysis: Defendant won on appeal. the burden of proof shifts to the government to show a ―significant state interest‖ that justifies use of the method that systematically excludes a group  ―Significant state interest‖ that is primarily and manifestly obvious is less than strict scrutiny.

Government would assert that they are helping the d. If the government isn’t primarily concerned with ―injecting race‖. The answer will be that society is affected negatively because by injecting race we’re undermining the legitimacy of the criminal justice system. Brian Glaspy (pg. o However in many jurisdictions. Will confuse or upset jurors Racial questions may not really screen jurors because people may be embarrassed to answer truthfully Defense: Race is an issue in our culture so it should be addressed appropriately.  The Ds’ defense was consent. Analysis:  Michaels thinks the court did not address the issue very convincingly. -48- .The federal standard is only when ―special circumstances‖ arise It must be something more than ―mere interracial confrontation‖ What is the government’s argument for the other side? That the defendant’s requested instruction would have injected a racial element that did not otherwise exist. violent crime is enough to allow the ―injection of race‖ into the jury selection process  One juror admitted he was bias to the point of being unable to make a fair judgment in the case.  PA has rule that something more than interracial crime was needed before venire could include questions about racial bias. 472) Facts:  Two black men convicted of raping a white woman. What would the state argue to keep from ―injecting race?‖ Prosecution: The race of the parties is not one of the facts of the crime so it should not factor into the decision. but to make the injection argument powerful. Commonwealth v. you must assert that it is hurting someone else other than the d. We’re suggesting there is racism. why does the government care? What are they afraid of? What is the defense trying to get from asking this? Injecting Race Michaels says this could hurt legitimacy. etc.

etc. but the trial judge only asked a general question as to bias or prejudice. o One aspect of the Texas statute that is not quite right (pg. 475)  White man admits to killing a black woman. 499) -49- .it depends on jurisdiction  These are exercised after the challenges for cause  How many challenges does each side get? o It depends on the severity of the crime o It can be as few as 2 to 20 preemptory challenges  Federal rule for capital offense each side gets 20  For a misdemeanor both sides get 3 each  State approaches (n.  The defense counsel requested specific voir dire to ascertain racial bias on the part of the jury.  In his admission to people he used racial and sexually charged epitaphs that were exceptionally crude.  Dismissals for Cause o Both prosecution and the defense may challenge an unlimited number of jurors for cause  What constitutes cause is determined by the rules of the jurisdiction  Ex:  Cannot read or write  Shown bias  Cannot speak English o The key issue is whether the bias is actually present.  Conviction was affirmed and the defendant lost. pg. but the reason that the court gave was that ―race is not a part of this case at all…the evidence of his crude language will be offered to show the malice of the killing‖. The Supreme Court has said that you can’t exclude for clause that the juror merely has scruples for or against the death penalty.  The court noted a prior case in PA where the bare fact that the victim of the rape was white and the perpetrator was black was not D won on a weird Problem 7.1 (pg. 479) is (b)(1).Preemptory Challenges and Batson  All jurisdictions allow preemptory challenges in addition to challenges for cause o P & D usually get the same number of challenges. 1. o Judges have wide discretion on this because the judge can see and hear the juror so the judge is in a better position to judge whether in fact they would be bias. but in some cases the D gets more…. 3.

Why have preemptory challenges? o It provides a margin of protection for challenges for cause because in the case where a party is unsuccessful in meeting the burden to show cause, they can still remove the juror.  This can also work in the inverse and allow a fuller for-cause approach. Preemptory challenges allow you to pry deeply into a challenge for cause in some cases because if you piss them off this way you can still remove them from the jury. o To provide parties with an opportunity to participate in the construction of the decision-making body, thereby enlisting their confidence in its decision.  This reason has nothing to do with bias, it lends legitimacy to the jury as a whole because the party has had a role in selecting the jurors o The preemptory made without giving any reason avoids trafficking in the core of truth in the most common stereotypes. (Burger’s dissent pg. 490) James Batson v. Kentucky (pg. 485) Facts: Petitioner, a black man, was convicted in a Kentucky state court, and he appealed. The Kentucky Supreme Court affirmed, and petitioner sought review. T Analysis: The Supreme Court, Justice Powell, held that: (1) Equal Protection Clause forbids prosecutor from challenging potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable to impartially consider the State's case against a black defendant, and (2) to establish a prima facie case of purposeful discrimination in selection of the petit jury defendant must first show that he is a member of a cognizable racial group, that prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race and that the facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race. The state may not strike black veniremen on the assumption that they will be biased in a particular case, simply because they are black. 1880-Strauder held a law that blacks cannot serve as veniremen as unconstitutional, so why is this case controversial? In Stauder, there was a whole class considered unfit for jury service Here they are stating that there may be a juror that is unfit for their specific case.

-50-

J. Burger and Rehnquist pointed out that this case did not apply only to blacks, but to everyone because anyone can be stricken on the basis of race or bias. Since the challenge in this case could potentially be applied to all races then it is not as suspect as the practice in Strauder. Strauder is a categorical restriction, not just the particular case in front of the court as it is here. Swain v. Alabama (pg. 487): created a presumption that preemptory challenges were properly exercised, and an inference of prejudice would be found only after ―case after case‖ the state used their preemptory challenges on blacks There is a deep disagreement among the majority and the dissent about what Swain means. Did Batson fundamentally change the rules (was the majority or the dissent correct)? Michaels believes the opinion was unclear Does the race of the juror affect their view of the defendant? Yes, oftentimes it does Usually, it is not determinative but is does make a difference Should a juror be excluded Batson said that it is not ok, even if you can get away with it, to strike a juror based on race More Ohio Rules Ohio allows a unilateral right to a bench trial Peremptory challenges—each D gets 4 in capital cases Back to Batson Just having a rule should create some change, regardless of enforcement. The Batson process? 1. Establish a prima facie case showing enough to raise an inference that the prosecution used its peremptories to exclude jurors on the basis of their race or other forbidden categories. 2. Once the D makes the prima facie showing, the burden shifts to the state to come up with neutral explanations for striking the jurors 3. The trial court then has the duty to determine if the D has established purposeful discrimination Tie goes to the state What if the P strikes all the black jurors and your attorney does nothing? 1. Make an ineffective assistance of counsel claim Usually it is a pattern that raises an inference Pattern is unusual because the prosecution usually has discretion but has to explain itself here The Supreme Court has not offered guidance on what -51-

constitutes a pattern Some courts compare ultimate jury to venire Lingo (1993) About 2/3 of Batson claims establish a prima facie cas Once you establish a prima facie case, the court then reviews the prosecutor's stated reasons to determine whether they overcome the defendant's prima facie case of discrimination RULE: The trial court's Batson determination will only be overturned if they are clearly erroneous—very deferential standard. RULE: It is unconstitutional to challenge someone for cause because they are against the death penalty as long as they are willing to follow the law. SUB: It can be used as a basis for peremptories. Some jurors here knew a witness or had some kind of potential bias Prosecution would want to strike someone with a criminal record Most common answer for a strike  Dissent strategies 1. Stop treating like cases differently based on race 2. Rationales applied to black jurors not applied to white jurors 3. Also, the hearing problem was not supported by the record o The reason wasn't there o Recent Batson case o Case turned on one juror 1. Looked at demeanor, was a student 2. Split court, weird configuration 3. Majority—demeanor is appropriate, but the trial judge did not make a specific finding as to why they ruled the way they did 4. Deference is not available if you do not make a specific finding—a surprising level of scrutiny

Batson Leftovers Remedy At trial level—usually stricken jurors will be reseated or a new jury will be seated On appeal—conviction reversed, new trial Batson applies regardless of whether the race of the defendant and the jurors being stricken are the same or different. Applies equally to cases where Based on 14th Amendment so state action is required so if the defendant is doing it, then the action is not -52-

6 is the constitutional minimum  Unanimous Verdicts  Do verdicts have to be unanimous? o Unanimous juries are the rule o Only a few states allow non-unanimous jury verdicts in felony cases o N. the court decided the prosecutor may make a Batson challenge in a case like this. In the 1970’s Federal 12 is required for felonies and misdemeanors States Majority rule is 12 jurors For misdemeanors. it was constitutionally mandated that 12 jurors make up a jury. 517  One case 9-3 was ok  One case 5-1 was not ok  Non-unanimous verdicts help the prosecution Jury Deadlock  Vote will not come out. the majority is 6 jurors The remaining states are on a continuum from 6-12 jurors For felonies. the instruction was the court’s interpretation of the actual instruction  Meant to be much more coercive  -53- . What about striking on the basis of sex? The court concluded Batson applies in those cases as well. Batson also applies in civil cases. Batson has not expanded to the all areas covered by the 14th Amendment. 3 pg. the jury will simply report that they are deadlocked  At that point the judge will make some kind of recommendation to the jury to try to come to consensus o Interests must be balanced in order to keep from pushing a juror to the point where they relinquish their honestly held view of the case in order to reach a consensus  Allen Charge o Instead of the actual instruction that the court approved. However.Deadlocks and Verdict Issues o Jury Size In 1898. etc are all unclear at this time 4. Marital status.obviously state action. So far. political viewpoints.

v. instead of hanging. Court says whether something is an ―element‖ or a ―means‖ is the legislative intent. can they do that?  NO. He is acquitted of the armed robbery. There was evidence that D menaced his victims with a switchblade.S. while other witnesses said it was a regular knife. 6 pg. o Why not retry both?  Govt wins if there is one conviction Multi-Theory Verdicts Mr. D challenges his conviction on the ground that the jury might not have been unanimous about the kind of weapon he had. He is acquitted of the armed robbery. there is -54- . Powell: when a jury has returned verdicts convicting a defendant of two or more crimes. What happens now? o Prosecution wants to retry. D. If the legislature meant it to be a means. is convicted of robbery by use of a weapon capable of causing death. retrial on gun charge barred by collateral estoppel  Mr. D is charged with armed robbery and with using a gun in the commission of the same robbery. not element. but that is not required of the means of the crime. Jury MUST be unanimous on the elements of the offense. but the jury hangs on the use of a gun charge.  It encourages the minority to rethink their position and join the majority ABA standard o The jurors have a duty to consult with one another and deliberate if it can be done without assaulting independent judgment Inconsistent Verdicts  Mr.  Minority state rule. Not majority rule  U. courts generally say that the verdicts should not be sustained. D is charged with armed robbery and with using a gun in the commission of the same robbery. 519  Majority decision: If there are inconsistent decisions. What happens? o Conviction stands! Why?  There is inconsistent treatment with inconsistent outcomes  N. What result? Conviction stands Type of knife is means of committing crime. the jury convicted him on the use of a gun charge. albeit a potentially lethal one. and the existences of an element of one of the crimes negates the existence of a necessary element of the other crime. but. the court doesn’t want to investigate behind the curtain so they will let matters lie.

 What is proof beyond a reasonable doubt? o Constitutional level: part of due process but the constitution does not mandate a particular definition of reasonable doubt.  Most juries are not instructed on their nullification powers  Burden of Proof (No questions on BOF on the exam)  Supreme Court has had a few cases on this and there are at least three levels of law. the accused shall enjoy the right…to be confronted with the witnesses against him.Nullification o Definition: A jury decision to acquit. What result? Conviction stands…Shad v.Shielding Witnesses o Part of the 6th Amendment that provides that ― in all criminal prosecutions. o Discretion for individual trial judges:  Varies from court to court  Lots of reliance from past cases  Problematic language  Can say—must find  To what issues must the burden of proof apply? I. o Judge can also order a new trial or convict of a lower offense. all dictated by the interests of justice. Arizona (n. -55- . D challenges his conviction on the ground that the jury might not have been unanimous about premeditation or the during a robbery.‖ Mr. 4 pg.a statutory limit on how far the legislature can go in making things ―means. is convicted of 1st degree murder under a statute defining murder as a murder committed with premeditation OR during a robbery. 518) 5. D. Confrontation Clause: 1. even though the evidence convinces them beyond a reasonable doubt that the defendant is guilty under the law  There is no question that the jury has this power and the decision is FINAL!  The jurors cannot be punished for exercising the right to nullify  Is there any check on the inverse power (convicting even though they are not guilty under the law in the juror’s minds)?  Yes: o D can appeal and if the appellate court finds that no reasonable jury could have found guilt beyond a reasonable doubt they will overturn the conviction.

 In addition to the Constitutional right to presence there are statutory rights to presence. o What constitutional claims might the D have since they are not able to be present at the competency hearing?  There is a right to presence originating from Due Process  If the D’s presence necessary to advance the fairness of the proceeding then they need to be there. What aspects of a prosecution witness’s testimony might a D have a vested interest in? 1. Romero v.  However. Jury can observe witness’s demeanor 3. o Constitutional right: D must give a knowing and intelligent waiver -56- . 576 o Pretrial hearing to determine competency of four year old witness prior to allowing her to testify. D has interest in seeing and hearing the testimony  Both to determine whether it is genuine and to provide his counsel with insights to help cross-examination of the witness. State (pg. Witness can see the defendant  All of these interests are protected by the confrontation clause.  Witness said he feared retaliation from the defendant  This case implicated # 2. Witness can see the jury 8. Live 7. therefore the state cannot arbitrarily or without justification eliminate any of these without violating the constitution. 3. 4. In the courtroom (splits 4 up) 6. glasses and coat with the collar up to cover his mouth and nose. In court testifying/under oath 5. 6 and 7 of the aspects of the confrontation clause above  Problem 8-5 pg.  State needs to trump the right to get over it.  Always recall that statutory and constitutional rights are different in the way the D can waive them. 567) Facts:  Witness testified in a hat. NONE are so powerful that they cannot be overcome in some cases.  He has weighted them as to the force they have had. D or counsel may question witness (cross-examine) 2.

o State constitutions tend to say that the D has the right to meet the witnesses face-to-face. made to someone other than the witness.  Ensuring reliability by providing opportunity for contemporary cross examination (since D can watch and communicate with the attorney). 578 o Federal rule: some witnesses may testify outside the courtroom and outside the presence of the D if the D is able to monitor the testimony and communicate with the defense attorney conducting the cross. o Statutory right: Much easier for counsel to waive rights on D’s behalf  Easier to create error by not having a proper waiver  Right to confrontation  Sixth Amendment.…applies to all states of the trial but only to SOME pretrial proceedings. o Court decided to limit confrontation interests. o Ex: W testifies that X said ―D killed V. to satisfy the important public policy prong you must do a case-specific inquiry on whether the child is likely to suffer trauma from testifying in the presence of the court and the D.  And allowing D and jury to examine the demeanor of the witness o In the context of child abuse cases. 3 pg. offered to prove the truth of the matter asserted. N. 2.Hearsay Testimony o Out-of-court statement. however if there is something that the D could contribute to discount the child’s competency then a problem may arise. o Critical question asked by court: Was there opportunity for full and effective crossexamination?  Most courts have held yes.‖ -57- . so to overcome the right guaranteed by the confrontation clause in cases like these you must show:  That testifying outside of the courtroom and the presence of the D is necessary to further an important public policy AND  You have to show the reliability of the testimony is otherwise assured.

but they went a different route.o Rejected extreme results (courts have long rejected and continue to reject these approached) o Using the example above these are two extreme positions that would make analysis of these problems. -58- . but the court has never followed either of these approaches: Always excluded by confrontation clause: X is a witness who D has a right to be confronted with by X’s being subject to cross-x Never excluded under confrontation clause: W is the witness. Ct. would have just overturned and left Ohio v. Ct. Washington (pg 581) Facts:  Crawford and his wife confront a man who allegedly tried to rape her and Crawford killed him  Crawford claimed it was self-defense. X is not. Summarizing the case history the court created a test: Since cross-x is meant to ensure that testimony is reliable. S. The court chooses a middle ground: the confrontation clause requires in-court testimony except in certain cases. Roberts test) Can be shown by proving Firmly rooted in a hearsay exception OR Particularized guarantee of trustworthiness. For a century. reinstated trial court’s conviction  The S. usually there’s a background principle that’s animating how you interpret the standard What’s the background principle of this standard? Reliability (evidence used against the D is reliable)  Crawford v. When you have a standard. the court would determine whether the testimony was allowed on a case-by-case basis. Is this a rule or a standard? Partly Rule and Partly Standard Standard because parts A and B are not strictly defined and are hard to apply. it was NOT reliable  Wash. then the statement by W that X said ―D killed V‖ must bear ―adequate indicia of reliability‖ to be allowed (Ohio v. Roberts alone. but her statements to the police undermined his self-defense claim  Crawford invokes spousal privilege so that wife cannot testify at trial Analysis:  Crawford’s wife’s testimony: Her whole statement was against penal interest because she could have been prosecuted for her involvement in the crime o This exception wasn’t fairly rooted under Roberts so the question came down to whether there were adequate indicia of reliability  Trial court said Yes  Appellate court said no.

 Domestic violence cases (pg.  What is the definition of testimonial? o Ongoing emergency and primary purpose to enable assistance: not testimonial o No ongoing emergency and primary purpose to establish past events: testimonial  Viewed objectively: what an outside observer would think was the primary purpose  Do other aspects of the confrontation right receive similar blanket protection?  Are there exceptions in testimonial context? Comments: o Effort at originalism is questionable at best in Crawford. it is a RULE o A rule is a much more effective way of enforcing a constitutional principle  Part of the court’s hope is that this would eliminate the abuses under Roberts by courts who wanted to allow unreliable testimony for whatever reasons o Follow up questions:  What is the definition of testimonial?  The court in Crawford doesn’t define testimonial but they tell us that answers to police interrogation are testimonial  Does the confrontation clause cover non-testimonial statements?  The court answers this in two consolidated cases (Davis and Hammond).  Framers would not have allowed admission of testimonial statements of a witness who does not appear at trial (unless unavailable and already cross-x’ed)  This is no longer a standard. o Why is it unconstitutional? -59- . 2 and 3) o In one case the victim talked to a 911 operator o In the other case the victim spoke to the police who responded to a 911 call. 593 n. o Originalism: They examined the history of the confrontation clause and asked what kind of evidence the framers intended to exclude with this clause. Privilege Against Self-Incrimination: 1. J.Comments on the Defendant’s Silence o It’s unconstitutional for a judge or for the prosecutor to suggest that an inference of guilt can be drawn from the D’s exercise of his constitutional right to remain silent.

said that you cannot compel someone to be a witness in a civil case and then use that info to help further a criminal case 1. D’s prior criminal record will not be available at trial HOWEVER if the D testifies some part of his/her criminal record will be available on cross-x to impeach the D’s credibility. the S.   Because it compels you to testify in order to avoid the negative repercussions of the judge or prosecutor allowing the jury to infer guilt from silence. then you have a right to remain silent o Provides no protection from being the source of physical evidence against yourself. o As early as 1892 the Supreme Court said that you cannot compel someone to be a witness in a civil case and then use that info. Therefore.  As long as what you say can be used against you in a future case. As long as what you say can be used against you in a future case.The 5th amendment bars commenting on a D’s right to remain silent  What counts as commenting on D’s silence? o Standard is generally any comments ―manifestly intended‖ or ―reasonably likely‖ to draw a jury’s attention to the fact that the D did not testify  D has constitutional entitlement to demand that the judge tell the jury that they should draw no inference from his/her exercising his/her right to remain silent. that record may be admissible on cross for impeachment purposes It is unconstitutional for a judge or for the prosecutor to suggest that an inference of guilt can be drawn from the D's exercise of his constitutional right to remain silent o Why else would D remain silent?  D has priors  As early as 1892. The court justified this by stating that this is not testimonial. dna. o Why else would a D remain silent?  D has prior convictions  As a general rule. then you have the right to remain silent 2. criminal record is not admissible in a criminal trial If they testify. Ct.     As a general rule. you can be compelled to give hair. Provides no protection for being the source of physical -60- . etc. to help further the criminal case. blood.

1—manifestly intended line b. Can be drawn in clemency proceedings. his silence cannot be used against him EVEN for purposes of impeachment. -61- . a. Judge says think about why the D didn't testify—exactly the kind of inference that might force him to testify 2. it does bar commenting on a D's right to remain silent a. Rationale: Inferences being used against you in criminal proceedings amounts to a greater amount of compulsion than in civil proceedings because the penalties associated with criminal proceedings are so much higher. Whatever the justification for the Fifth Amendment.evidenced—can still compel hair. DNA. civil forfeiture proceedings Adverse inferences cannot be drawn in sentencing proceedings Opening the door (EXCEPTION to Griffin rule): If D testifies that he attacked in self-defense: Prosecutor can then cross on that testimony for inconsistencies Questioning on pre=arrest silence does not violate privilege against self-defense. Griffin v. blood. When does the rule apply? General rule: Adverse inferences may not be drawn in criminal proceedings but can be drawn in civil proceedings. Considered non-testimonial v. Neither judge nor prosecutor can do it What counts as commenting on silent? a. deportation proceedings. 3. Exception to the exception: if the D is given Miranda warnings. D has a constitutional right to a proper jury instruction to draw no inference from the exercise of the right o Self-Incrimination Privilege at Trial Test to determine whether a statement violated the D’s 5th amendment right to remain silent: Was it manifestly intended as a comment on the defendant’s silence. etc. N. California 1.

found that the trial contained constitutional error it ALWAYS reversed and ordered new trial.K.Ct. o Three categories of structural error  Errors that render the proceedings just fundamentally unfair  Ex: judge married to prosecutor  Situations in which the effect of the error would be too difficult to assess  Ex: D wants counsel A but gets counsel B….don’t know what counsel A’s defense would have been so can’t do harmless error analysis  Irrelevance of harm to the right  Ex: Right to proceed pro se o How do you decide whether the error was harmless?  Constitutional errors test: the govt must demonstrate beyond a reasonable doubt that the error was harmless  Non-constitutional errors test: No uniform standard  Federal standard: errors that affect substantial rights are not harmless  Some states use reasonable doubt test for nonconstitutional errors too.  Chapman held that assumption was wrong o Some constitutional errors could be harmless o Others could not o Long list in each category o Gave examples in dicta o Arizona v. o Prior to 1960’s whenever the S.Harmless Error  Very important o History o 19th Century: American courts largely followed exchecquer rule (doover if there was an error in the trial) o Most jurisdictions in the 1920’s (and now all jurisdictions): Most states adopted some form of harmless error statute (where rules can be violated but D is guilty anyway). Fulminante:  Distinguished between structural and trial defects  Trial errors were like erroneous admission of evidence—could be subject to harmless error analysis.  Thus is was presumed that constitutional errors could not be harmless errors. (No the majority by far) -62- . Appeals: 1.

On the other hand. indigent defendants do not have the right to insist on being represented by a particular attorney. if you really feel that Indigo is incompetent. which prohibits multiple prosecutions and punishments for the same offense. King. the choice of counsel rests in the trial court's sound discretion. As noted.The Double Jeopardy Clause protects the finality of judgments. then the jury's indecision would be tantamount to acquittal. that confidence counts for something. there is no judgment. Unlike non-indigent defendants. Criminal Procedure 612-613 (4th ed. consider whether the Dual Sovereignty Doctrine trumps the Double Jeopardy Clause in the instant case. and not inclined to repose confidence in an attorney appointed through ordinary channels (be it the public defender channel or judicial appointment). Since he has confidence in Sky Blue. On the contrary. lest the jury's uncertainty bar any possibility of future prosecution. consider whether jeopardy attached in the prior proceeding. you must be committed to the fairness and integrity of the criminal justice system. First. Right to Counsel There is a simple answer to the first question: you are not required to grant Sky Blue's request to be represented by Indigo. In a prosecution that ends with a hung jury. assuming that jeopardy arose in the first prosecution and that the second prosecution involves a different offense. Indigo shares those beliefs. if you wish. Nancy J. Third.. if jeopardy did attach. who can retain counsel of their own choosing (that they can afford). a jury might feel undue pressure to convict. As a result. as a judge. without any possibility of a retrial due to indecision. consider whether the instant proceeding falls in the categories of proceedings to which the Double Jeopardy Clause applies. Indeed. Second. and therefore Sky Blue is likely to repose a great deal of confidence in Indigo Blue (even if he is ultimately convicted). Resumption of such a prosecution does not expose the defendant to a new jeopardy. You have learned a six-step methodology. -63- . Israel &amp. If a mistrial due to a hung jury were sufficient to terminate a prosecution altogether. Finally. 2009). an argument can be made for appointing Indigo. when in fact the jury has not resolved the question of guilt or innocence. See Wayne R. LaFave. Fifth. you can decline the request. consider whether the rule of issue preclusion might apply. different jeopardy. As a result. Jerold H. consider whether the prior jeopardy terminated and the instant proceeding is a new. consider whether the instant proceeding involves the "same offense" as an earlier proceeding. it would probably be inappropriate to appoint him to represent Sky Blue. So. Id. The trial before a new jury is simply a continuation of the original trial before the first jury. Sky Blue is a very peculiar soul with very militant beliefs. and would not provide quality representation. This lesson has analyzed the Double Jeopardy Clause. Sky Blue is distrustful of the judicial system. The more difficult question is whether you should appoint Indigo to represent Sky Blue. Fourth. In addition.

Sarafite. J. Wainwright.. LaFave. but to state court proceedings as well. GonzalezLopez. Although judges must try to accommodate attorney schedules. The Sixth Amendment right to counsel is absolute only in the sense that a defendant can retain any attorney who is duly licensed in the state. Burkoff & C. Conclusion of Right to Counsel Under the Sixth Amendment to the United States Constitution. This right to counsel applies. the attorney must be available and willing to undertake the representation. there was debate about whether indigent defendants were entitled to counsel at state expense. Criminal Procedure 614-615 (4th ed. Id. 372 U. 316 U. see also R. Jerold H. at 614-615. See Gideon v. the Court has interpreted the Fourteenth Amendment due process clause as requiring its application. see Wheat v. Jerold H. Id.S. See United States v. Israel & Nancy J. not only to federal court proceedings. Id. 148 (2006) ("Deprivation of the right [to counsel] is 'complete' when the defendant is erroneously prevented from being represented by the lawyer he wants regardless of the quality of the representation he received"). 575 (1964). you can grant Sky Blue's request to be represented by Indigo (assuming that Indigo is willing to accept the representation). circumstances may sometimes prevent a judge from doing so. 548 U. Id. Israel & Nancy J. 486 U. Id. United States.S. A minority view suggests that courts should be considerate of a defendant's request to be represented by a particular attorney. King. In Betts v. 153 (1988) (upholding a trial court order precluding an attorney from representing multiple co-defendants in a single criminal case).S. Of course. King. Brady. Judges can only override a defendant's choice of counsel in limited situations such as when serious ethical issues are raised by the representation. or when defendant chooses an attorney whose schedule precludes prosecution of the case in a manner consistent with the "prompt and efficient administration of justice. Counsel must be provided only when the appointment is fundamental and necessary to due process. 455 (1942). 335 (1963). Abramson. a defendant's choice of counsel cannot be denied simply because the judge believes that another attorney would provide better representation. Hancock. criminal defendants have a constitutional (but waivable) right to the assistance of counsel in criminal proceedings. 140. and determinations regarding the need for counsel should be made on a -64- .S. For many years. 2009). 2007). Weaver. see also Wayne R. LaFave. While the Sixth Amendment is not directly applicable to the states. L. 376 U.S. However.But. the Court held that there was no automatic right on the part of indigents to state appointed counsel. Principles of Criminal Procedure 239-248 (2d ed. Id. See Wayne R. if you felt that Indigo is competent (if a little off-beat). supra. " See Ungar v.

. and that counsel must be provided if a defendant is to receive a fair trial.S.S. See Ross v. Indeed. choose to retain counsel when they are charged with serious crimes. King. Douglas v. Gideon v. 440 U. indigent defendants do not have the right to insist on being represented by a particular attorney.. 372 U. The choice of counsel rests in the trial court's sound discretion. at 344-345. Douglas v. the Court held that there is no right to appointed counsel for discretionary appeals. 353 (1963). However. -65- . Moffitt. 600 (1974). at 612-613. at 344. most criminal defendants have little or no legal training. Id. See Scott v. a judge can appoint any licensed attorney who he believes is competent and will provide adequate representation. Id.S. Id. Israel & Nancy J. 407 U. 335. 417 U. who have ample means to do so. 417 U. Moffitt. the Court noted that most defendants. The right to appointed counsel automatically applies only when there is a possibility of imprisonment. the United States Supreme Court has held that a defendant must actually be imprisoned before the denial of counsel runs afoul of the Sixth Amendment. Jerold H.However. the Court emphasized a variety of factors in concluding that Betts was not entitled to state appointed counsel: the fact that Betts had previously been exposed to the criminal justice process. the attorney must be available and willing to undertake the representation. and does not automatically apply when there is only the possibility of a fine. 600 (1974). In Betts. supra.S. Id. California. 342-343 (1963). inRoss v.S. A minority view suggests that courts should be considerate of a defendant's request to be represented by a particular attorney.S. Hamlin. California. 372 U. 25 (1972). the fact that the case against him was not overly complex. Unlike non-indigent defendants. and the fact that he was reasonably intelligent. In doing so. 511 U. 353 (1963). The right to appointed counsel applies both to trial court proceedings and to some appellate proceedings. Id. 367 (1979). Of course. SeeWayne R.case-by-case basis. United States. overruled Betts and held that the right to counsel is fundamental and necessary to due process. Illinois. In particular. and therefore can grant a defendant's request to be represented by a particular attorney (provided that the attorney is willing and able to undertake the representation).Id. the Court held that a trial court could enhance a conviction (for a charge for which counsel had been provided) based on a prior uncounseled conviction (for which an attorney was not required because there was no imprisonment). Id. Wainwright.S. Id. LaFave. In Nichols v.S. the right to counsel applies to all first appeals (the appeal as of right). 372 U. 738 (1994). See Argersinger v. Further.