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Criminal Procedure: Adjudication

Pretrial Detention and Release
Assignment One: Bail; Preventive Detention Pages 939-959; Bail Reform Act Rule 46
I. Stack v. Boyle: Excessive Bail
A. Rule: Excessive Bail: Any amount of bail that is more than necessary to ensure s presence at trial.
B. Rule: Factors:
1. Severity of crime (usually longer sentence, so more incentive to flee)
i. Why death penalty cases do not grant bail
2. Evidence of guilt (stronger evidence increases incentive to flee)
3. Wealth (the more one has, the more the court is likely to impose to ensure appearance)
4. Ties to the community (more has, the less incentive one has to flee)
i. Married?
5. Ties outside of the community (more likely one will flee)
i. Foreign harbor?
6. Criminal record (can show that the has shown up before)
C. Definition: Bond
1. The pledging of money or a financial bond that the will forfeit if he fails to show up as requires, or
if he otherwise violates the terms of his release.
2. Why we permit it:
i. Presumption of innocence
ii. Resource constraints
iii. The impact on being able to mount a defense
a. Can keep working and can therefore pay for it
b. Be with the family and will lower the burden/stress of a trial
3. When are people released on bail?
i. Field release issued a summons (never placed in custodial arrest) just a demand that one
ii. Stationhouse release non judicial (often to sober up or cool down) given summons to appear
in court.
iii. Judicial release 4 types
a. Releasing on my own recognizance (ROR)

Can impose non-financial considerations (e.g. do not break the law)

o BRA - 3142(b) always a condition that commit no new crimes.
a. Once it is a condition, it is not only a new crime, but a violation of the first
crimes bail.
b. Do not mess with the evidence
c. Surrender passport, stay within x miles or state/city limits
See document
o Courts have enormous power to place restrictions on the release
a. E.g. stay away from x person, no contact with crime family
o A serious concern is always to ensure that the integrity of the system is kept intact.
b. Financial conditions

Unsecured bond a promise to pay

Deposit bond must pay up front a percentage of the full bond

Full bond put it all up

Bail bondsmen
o Not an officer of the court

o Pledge to the court that the bondsmen will make the payment if the does not
a. Some jurisdictions require the use of a bail bondsmen or you sit in jail
o They make people show up for trial huge financial incentive
o In general, they do not have the same protections of law enforcement, but they often
do not face the same constitutional constraints.
II. Bail Reform Act of 1984 (Breakdown of Sections & Purposes)
3141: General authority to release or detain Ds pending trial or pending sentence and appeal
3142(a): Specifies what that authority is: judicial officer has four choices:
o (1) Release on OR (own recognizance) or unsecured bond
o (2) Release on conditions (financial or otherwise)
o (3) Temporary detention to permit revocation of bail or deportation
o (4) Actual Detention
Options themselves laid out in subsections (b), (c), (d), and (e), respectively
(e): Detention allowed only AFTER a hearing
(f): When you can have a hearing
(g): What factors are considered at hearing (see above)
(h) and (i) tell what type of order judge must issue
(j): Presumption of Innocence
o Nothing in this section shall be construed as modifying or limiting the presumption of
18 U.S.C. 3142(e)
(2) In a case described in subsection (f)(1) of this section, a rebuttable presumption arises that no
condition or combination of conditions will reasonably assure the safety of any other person and the
community if such judicial officer finds that
o (A) the person has been convicted of a Federal offense that is described in subsection (f)(1) of this
section, or of a State or local offense that would have been on an offense described in subsection
(f)(1) of this section if a circumstance giving rise to Federal jurisdiction had existed;
o (B) the offense described in subparagraph (A) was committed while the person was on release
pending trial for a Federal, State, or local offense; and
o (C) a period of not more than 5 years has elapsed since the date of conviction, or the release of the
person from imprisonment, for the offense described in subparagraph (A), whichever is later.
III. U.S. v. Salerno: Pre-Trial Detention
A. Rule: In addition to being a flight risk, a suspect may be held prior to trial if he or she is poses a danger
to the community.
1. In order to be detained, hearing is held with counsel present and the court must find by clear and
convincing evidence either that is a flight risk or that no release conditions will ensure the safety
of the community.
i. Court finds that pre-trial detention is regulatory rather than punitive (for 5A DP Claim)
ii. Since there is no right to bail, no problem with Congress adding this under the BRA (8A)
iii. This is an allocation of the burden of proof, and does not dictate the eventual outcome
(presumption of innocence argument)
a. Slippery Slope: Hendrix v. Kansas: Civil detainment ok after sentence concluded for sexual
2. This case marks one of the few times were the government is permitted to make a prediction about
future dangerousness
The Charging Decision
Assignment Two: Prosecutorial Discretion; Limits on the Charging Power Pages 961-87

I. Charging Decision: The Prosecutor Runs the Show

A. US Constitution: Art. II, 3: the executive branch shall take care that the laws be faithfully executed.
B. Factors influencing whether to bring a charge:
1. Strength of the evidence
i. Process as punishment
a. The national district attorneys association should file charges that he or she believes
adequately encompass the accuseds criminal activity and which he or she reasonably
believes can be substantiated by admissible evidence at trial.
b. The ABA says it is unethical to file or continue a case unless you have evidence to support a
ii. Jury nullification
a. A factor that can be considered
b. The potential thatdespite the law and facts that create a sound, prosecutable casethe
factfinder is likely to acquit the defendant because of the unpopularity of some factor
involved in the prosecution or because of the overwhelming popularity of the defendant or
his/her cause, is not a factor prohibiting prosecution.
o Does not mean you cannot consider; just says it does not prohibit filing charges.
2. Seriousness of the crime and impact on the
3. Deterrence
4. s criminal record
5. s cooperation
6. presence of non-prosecution alternatives
i. diversion programs, drug treatment, restitution
7. impact on the victim
8. prosecution priorities
II. Inmates of Attica Correctional Facility v. Rockefeller:
A. Rule: Courts cannot require a Prosecutor to bring a charge
1. Why no Judicial Oversight?
i. Separation of power
ii. Standing
iii. Courts are not competent to review charging decision
a. There are many things a prosecutor must decide
iv. Might reveal grand jury information
III. U.S. v. Batchelder: Selecting the Charge
A. Rule: If two statutes overlap, the P has the choice of under which statute to charge a .
1. Limits: Cannot charge based on discrimination.
IV. Challenges to Prosecution Decision
A. Selective prosecution equal protection
1. Similarly situated people not prosecuted and
2. Decision to prosecute based on impermissible criteria (race, religion, 1A)
B. Vindictive prosecution due process
1. P had bad motive as to this , and
2. Similarly situated people not prosecuted
i. Assumed when exercises right to appeal and more charges are added.
ii. Otherwise, it is presumed prosecution acted in good faith.
C. Malicious prosecution civil action for damages
1. Often 1983 claims
2. Seeking damages for arrest and charge without probable cause

i. To prevail, must show that there was no probable cause to bring the case in the first place
a. Sometimes called retaliatory prosecution
V. U.S. v. Armstrong: Selective Prosecution Claim: Discovery
A. Rule: In order to compel discovery in a selective prosecution case, a must give credible evidence that
there is a discriminatory effect motivated by a discriminatory purpose.
1. Discriminatory effect
i. Similarly-situated people not being prosecuted
2. Discriminatory purpose
i. Disparate impact not enough
ii. Because of race, not knowing racial impact
Grand Juries
Assignment Three: Background; Secrecy Pages 989-1004; Rule 6
I. Background
A. Basics:
1. 5th: cant be charged for a felony unless indicted by a grand jury
i. does not apply to the states
2. 23 citizens
i. will often hear many cases as opposed to a single case
3. two functions:
i. 1) investigate (sword)
ii. 2) screen charging decisions (shield)
4. timing: sometimes before arrest, sometimes after arrest (most common)
B. Secrecy
1. Who has been called is secret
i. Cannot retaliate against a witness in a grand jury
a. 18 USC 1513

Includes interfering with employment

C. Why do we keep it secret? (Rule 6(b) Information Presented to the Grand Jury)
1. Prevent target from escaping
2. Prevent target from trying to influence jurors
3. Prevent target from tampering with witnesses
4. Give witnesses a reason to testify fully, without fear that testimony will get out
5. Protect the targets reputation
i. Witnesses, however, may report everything that they said or happened
a. First amendment considerations
b. Impractical to keep them quiet
II. In re Sealed Case: The scope of Rule 6(e): Matters Occurring Before the Grand Jury
A. Rule: A Ps statements about his/her investigation implicate Rule 6e only when they directly reveal GJ
matters (with certain exceptions).
1. Also covers matters likely to occur; can include discussions of strategy and direction of
i. Information actually presented to the GJ is core Rule 6(e) material that is afforded broadest
protection from disclosure.
a. Not everything in a Ps investigation is required to be kept secret

it is . . . necessary to differentiate between statements by a prosecutors office with

respect to its own investigation, and statements by a prosecutors office with respect to
a grand jurys investigation, a distinction of the utmost significant.

Using the word I believe can reflect the belief of Ps; not saying an indictment will be
sought, for example, but that Ps believe it should happen
o This can make the difference
Facts already known to the public
Where the general public is already aware of the information contained in the
prosecutors statement, there is no additional harm in the prosecutor referring to such

III. Subpoena Power

A. Can compel:
1. Witnesses to appear and give testimony under oath (subpoena ad testificandum)
i. Categories of Grand Jury Witnesses
a. Target: a person for whom there is believed to be evidence that would lead to an indictment
b. Subject: person who is not a target but against whom evidence may arise that would change
the person into a target
c. Witness: person who has information relevant to GJ, but is neither target nor subject
2. Documents; can compel a witness to produce documents (subpoena deces tecum)
B. Limits
1. Witness may not produce
i. Privileged communications
2. Statutory limits
i. Stored Communications Act 18 U.S.C. 2703
a. Stored emails from service provider

Within 180 days of email only be a search warrant

After 180 days of email by GJ subpoena if tell customer in advance (exception: if

notice would seriously jeopardy a criminal), otherwise by warrant
b. Data on customers and online session times by GJ subpoena

Other information by warrant

IV. Rights of the Defendant
A. 5A; not silence
1. Can be held in civil contempt for a refusal to answer.
i. Civil contempt: fined or put in jail until the conclusion of the GJ term
a. Show Cause Order: If witness fails to testify pursuant to a subpoena, chief judge can issue
this order to a witness requiring the witness to explain why he/she should not be held in

One of 3 things happens when there is civil contempt:

o GJ term ends
o Witness testifies
o Judge gives up and thinks the coercive power is not working
ii. Criminal contempt: persona has willfully refused to obey a court order or engaged in improper
conduct, can be punished even if he is now willing to comply.
a. This is punishment; not a coercive measure

i.e. punishment for past action, not a measure to get the person to perform some action
B. NO right to an attorney
1. Can ask to leave, however, to speak with an attorney, and then re-enter
i. Anything stated in the GJ can be held against the witness.
Assignment Four: Investigations; Immunity Pages 1004-1034; Rules 6, 17
I. U.S. v. Dionisio: Reasonableness of a Subpoena
A. Rule: GJ may subpoena so long as the request is reasonable.

1. Requiring a person to appear is not a seizure for 4A purposes.

i. At some point, may be unreasonable, but arguments that the subpoena violates the Constitution is
a tough argument.
2. Best Argument to Quash: Rule 17(c)(2)
i. on motion by recipient, court may quash or modify the subpoena if compliance would be
unreasonable or oppressive.
II. U.S. v. R. Enterprises: Application of Rule 17(C)(2)
A. Rule: Very difficult to quash even under this rule
1. There must be no reasonable possibility that the category of materials the government seeks will
produce information relevant to the general subject of the grand jurys investigation.
B. Rule: In general, the GJs subpoena power is potent and very broad.
1. Information need only be a link in the chain of evidence needed to prosecute a for a federal crime.
III. Immunity: Core Idea: In return for information, witness immunized from prosecution.
A. 6002: Says the witness must testify, but no testimony compelled under the order (or any information
directly or indirectly derived from such testimony or other information) may be used against the witness
in any criminal case.
B. 6002: The court shall issue an order requiring testimony. i.e. the judge only plays an administrative
role. The P makes the call whether there will be immunity.
1. Transactional Immunity: (Immunity by agreement done by K or agreements)
i. The government will not prosecute for the crimes arising from the transaction in question
a. These come from pocket or letter agreements

You give Transaction because

o You want them to be very cooperative
o They have a lot of useful information
a. e.g.. Monica Lewinsky
can be a very broad grant of immunity
2. Use Immunity: (Forced immunity)
i. The government will not use the immunized testimony that provides, directly or indirectly, to
prosecute me.
C. Concerns over immunizing:
1. Immunizing the wrong person
2. Not sure what the person will give you; want to make sure you are getting a lot
3. Credibility of the witness is hurt by immunization; juries hate it.
D. How to get the info
1. Have a proffer session whereby the witness is immunized for that particular time, e.g., queen for
a day letter, and then parties can negotiate afterwards to determine the importance of the testimony.
IV. Kastigar Hearing
A. Occurs when P tries to prosecute a witness who was given immunity
1. Heavy burden placed upon the P to demonstrate that there was an independent, legitimate source
of information.
i. Cannot be directly or indirectly related to the testimony given by the witness.
a. No inevitable source doctrine; only independent source doctrine.
V. U.S. v. Hubbell: Connection between 5A and Subpoena Power (target was immunized)
A. Rule: 5A protects the target of a grand jury investigation from being compelled to answer questions
designed to elicit information about the existence of sources of potentially incriminating evidence.
B. Rule: It is not what is written down. That is not protected. But the act of handing it to the prosecution
may be protected.
1. Concern in this case was that the government asked for 13k documents. It was a fishing
expedition. It was a step in the chain of prosecuting the target.

C. Todays Standard: If government can state with reasonable particularity the knowledge of the
documents, then no Hubbell problem. If government is unaware of the existence of the documents, then
there is a Hubbell problem.
1. Court was concerned with the fact that this was giving the key to a safe. The government did not
know about these particular documents.
i. This was Derivative use of the documents. Cannot do that.
a. If government was previously aware, however, the act of production adds nothing.
Assignment Five: Preliminary Hearings; Grand Jury Screening; Indictment Challenges Pages 1034-54; Rules 5.1, 6

I. Screening the Charge

A. PreTrial Screening
1. Arrest Warrant Magistrates decides if there is probable cause; OR
2. Post-Arrest Gerstein Hearing (within 48 hours) Magistrate decides if there is probable cause.
II. The Sequence
A. Option 1
1. Arrest Prelim Hearing (bound over to) Grand Jury
B. Option 2
1. Grand Jury indictment Arrest
III. Preliminary Hearings
A. Mechanics
1. Within two weeks if in custody, three weeks if not in custody.
2. Adversarial
i. P must put on case to show PC that committed crime
ii. entitled to counsel
iii. can challenge P case, put on own case
3. Magistrate Judges makes bindover decision
B. Purposes
1. : screening, discovery
2. P: perpetuate testimony
3. Social Perspective: Keeps P from bringing false charges; may make want plea.
i. Government almost always wins.
C. Rule 5.1: Preliminary Hearing must take place unless
1. waives the hearing
2. is indicted (the important one)
3. govt files an information under Rule 7(b) charging the with a felony
4. govt files an information charging the with a misdemeanor.
i. Note: If no PC found at Prelim, jeopardy does not attach.
a. Reasons a would waive:

GJ may find other crimes

May help for a plea deal

b. Reasons a would not waive:

may just get the case thrown out

make it more difficult on the P

IV. U.S. v. Costello: On what may the GJ rely to indict?
A. Rule: GJ may rely entirely on inadmissible to indict.
B. Rule: Indictments that are valid on their face are valid. Period.
1. An Indictment returned by a legally constituted and unbiased GJ like an information drawn by the
P, if valid on its face, is enough to call for a trial of the charge on the merits. The 5A requires
nothing more.

i. Very difficult to review a GJ indictment on the merits

a. Courts do not want mini-trials
b. Courts also want GJs kept separate.
C. Rule: Effect of this is to wipe out challenges on the merits of the evidence. Can only proceed if there
was prosecutorial misconduct, such as perjured testimony.
V. Indictment Challenges
A. U.S. v. Williams: Does P have to provide exculpatory evidence?
1. Rule: P is not required to provide exculpatory evidence to the GJ.
B. Bank of Nova Scotia: When there is P misconduct in the GJ and learns before trial
1. Rule: Difficult to dismiss indictment: in the absence of demonstrated prejudice to the accused,
grand jury errors are not a basis for dismissing the indictment.
2. Rule: Dismissal is appropriate only if it is established that the violation substantially influenced the
GJs decision to indict, or if there is grave doubt that the decision to indict was free from substantial
influence of such violations.
i. Need Misconduct and Prejudice
C. US v. Mechanik: Defendants learns of rule 6 violations during trial
1. Rule: Once trial begins, errors are harmless (in general).
D. Type of Challenges where courts will intervene:
1. Presenting perjured testimony to GJ
i. Prosecutor must be knowing or reckless as to falsity
2. Using GJ to uncover civil information rather than criminal
i. Cannot be your intent
3. Telling jurors dont have to agree with everything in the indictment, just critical parts
i. Indictment must be approved in its entirety
4. Misstate the law
5. Trying to improperly influence a GJ witness
6. Disclosing GJ information
7. Continuing to investigate after indictment returned
i. Even if one of these takes place, still likely going to lose:
Scope of the Prosecution
Assignment Six: Speedy Trial Right Pages 1055-1076; See Speedy Trial Act Rule 45
I. Barker v. Wingo: The Balancing Test
A. Rule: The Right to Speedy Trial shall be evaluated under a balancing test weighing the four factors with
an emphasis on #3: (note: none are necessary or sufficient!)
1. Length of delay (triggering mechanism)
i. Approximately one year (Doggett Footnote 1)
ii. Courts inclined to permit longer delay for a serious offense
2. Reason for the delay
3. Defendants assertion of the right (failure to do so weights heavily against the defendant);
4. Prejudice to the defendant.
i. Big concern is losing evidence (such as a witness).
B. Rule: Court refuses to employ a 1) fixed time limit or a 2) demand rule:
1. To employ a fixed time limit would make the court a legislative body.
2. To employ a demand rule would be inconsistent with Zerbst and Courts approach to
fundamental constitutional rights, and would also place the defendants counsel in a bad
C. Rule: The Speedy Trial Right differs from many other constitutional rights:

1. Delay causes a problem for the community, from suspect being out in the community to
permitting the defendant to manipulate the system
2. Can work in defendants favor, such as a witness forgetting events or evidence being lost
3. More vague than other rights; tough to determine when it comes into play.
D. Rule: Why we have the Speedy Trial Right:
1. Prevent oppressive pre-trial incarceration;
2. Minimize anxiety and concern of the accused; and
3. Limit the possibility that the defense will be impaired (most important)
II. Doggett v. U.S.: Rule: Presumption of prejudice if delay is excessive.
II. Vermont v. Brillon: Failure by state-appointed defense counsel
A. Rule: Failure of state-appointed defense counsel is not grounds for a speedy trial right violation
III. Implications of the Speedy Trial Act: 18 U.S.C. 3161 et seq.
A. Rule: In the Federal System, the STA has largely supplanted the 6A as a basis for litigation
1. Act provides specific time limits when certain events must occur.
i. 30 Days - Once the defendant is arrested or served with a summons, prosecution must
file an indictment or an information.
a. If no Grand Jury for 30 days, then the Prosecution gets another 30 days.
ii. 30 Days Must give at least this time period from first appearance to trial.
iii. 70 Days Time after filing and making public the information or indictment or
defendants first appearance for when the trial must begin (later of the 2)
iv. 90 days Time for beginning trial if the defendant is continuously detained.
2. Many exceptions - 3161(h)(1-9)
i. Delays caused by unavailability of the defendant or a key witness, transportation
needs, reasonable legal maneuvering by a codefendant, or other proceeding
involving the defendant.
ii. Typically applied were defendant is source of delay
a. Sometimes for Prosecution filing motions or interlocutory appeals
iii. If a complicated pretrial process, likely to have delays.
a. e.g. joinder and severance, parties need more time, and includes prep time for
GJ hearings.
iv. Continuances: Either party can seek, or judge can grant sua sponte.
a. Need for delay must outweigh defendants interest in speedy trial
b. Not permitted for court congestion or for a failure to prepare diligently.
v. Flexibility allowed for meeting the ends of justice.
a. Even delays by open-ended continuances are generally excluded.
B. Rule: Remedy for a STA violation: Dismissal with or without prejudice.
1. Note the difference between 6A and STA:
i. 6A: Always Dismissed with prejudice
ii. STA: Dismissed with or without prejudice
a. Under STA, may end up just having to wait longer.
C. Rule: Steps in a STA analysis where Defendant has the burden of showing violation. Prosecution can
then rebut with showing delays are legitimate.
1. Find a start date
i. Arrest, formal charge, first appearance
2. Count calendar days
3. Subtract exclusions
IV. Zedner v. U.S.: Prospective Waiver
A. Rule: Cannot prospectively waive under STA
V. U.S. v. Lovasco: When does the clock start?
A. Rule: 6A: Indicted or arrested/served summons

B. Rule: STA: 1) Arrested/summoned (30 days to indictment); or 2) indictment made public or first
apperance, whichever comes later (70 days to trial)
Assignment Seven: Joinder and Severance
I. Joinder: Rule 8:
A. Rule: A court may join offenses if they are
1. Of the same or similar character; or are
2. Based on the same act or transaction; or are
3. Connected with or constitute parts of a common scheme or plan.
B. Rule: A court may join defendants if they are alleged to have participated in the same act or transaction,
or in the same series of acts or transactions, constitute an offense or offenses.
C. Rule: FRCP 13: The court may order that separate cases be tried together as though brought in a single
indictment or information if all the offenses and all defendants could have been joined in a single
indictment or information.
1. Leipold mentioned that Rule 13 is not as important as Rule 8.
2. Just a procedural mechanism that relieves pressure of when offenses or defendants may be
D. Benefits of Joinder:
1. If there is less evidence on one, may help you win in both as jury may disregard the other
evidence for the stronger case
2. Time/money get it all done at once
3. Maybe increase chances of concurrent sentencing
i. Note: Joinder does not statistically affect the outcome of a trial.
E. Potential Prejudice:
1. Jury will infer criminal disposition (halo effect)
2. Jury will confuse the evidence
3. Will inhibit from making a defense
i. May want to get on the stand to defend against one when you may be open for cross
on the other
a. Really need to be able to show that there was a direct conflict; courts are
worried about you changing your mind
F. Likely outcome of motions:
1. Court affirm no severance all the time
i. Relevance of trial evidence: if inadmissible, plays a role, but not dispositive.
2. Courts love to use limiting instructions in this situation.
II. Severance: Rule 14
A. Rule: If the joinder of offenses . . . appears to prejudice a defendant or the government, the court may
order separate trials of counts, severe the defendants trials, or provide any other relied that justice
IV. U.S. v. Hawkins: Application of misjoinder
A. Rule: Whether joinder was proper is a question of law, and misjoinder is not a constitutional error.
B. Rule: If there is misjoinder, court will reverse unless the error results in no actual prejudice to the
defendant because it had no substantial and injurious effect or influence on determining the jurys
1. Indicia for determining actual prejudice
i. Whether the evidence of guilt was overwhelming and the concomitant effect of any
improperly admitted evidence on the jurys verdict;
ii. The steps taken to mitigate the effects of the error;

iii. The extent to which the improperly admitted evidence as to the misjoinder counts
would have been admissible at trial on the other counts.
C. Rule: Courts permit broad joinder for efficiency purposes, but the requirements are not infinitely
1. e.g. a mere temporal relationship is not sufficient to establish the propriety of joinder.
V. Zafiro v. U.S.: Mutually antagonistic defenses; finger pointing
A. Rule: Severance under Rule 14 should be granted only when there is a serious risk that a joint trial
would compromise a specific trial right of one of the defendants, or prevent the jury from making a
reliable judgment about guilt or innocence.
1. Court declined to adopt a bright-line rule here. Mutually antagonistic defenses may be
sufficient, but it does not result in automatic severance.
2. Court concerned with the empty chair and being able to point the finger.
VI. Gray v. Maryland: Application of Bruton.
A. Rule: When a codefendant confesses and implicates the other defendant, redacting the name or replacing
it with another word is insufficient. Must hold separate trials.
VII. Recap:
A. Rule: Two separate arguments.
1. First, argue that there was misjoinder.
2. Even if there was proper joinder, then argue the resulting prejudice violates Rule 14.
B. Rule: When the trial judge gets it wrong:
1. Under misjoinder, can remand for a new trial unless prosecution can show harmless error
2. Under failure to sever, defendant has the burden of showing that the trial judge abused its
i. Even if severance should have been granted, prosecution can still show harmless error.
a. e.g. overwhelming evidence of defendants guilt.
a. Even a Bruton problem may still be harmless error under this rule.
Right to Counsel
Assignment Eight: Effective Assistance of Counsel Pages 199-216, 232-41; Rule 44
I. Strickland v. Washington: Ineffective Assistance of Counsel
A. Rule: In order to establish a claim for ineffective assistance of counsel, the must demonstrate
deficient performance and prejudice.
1. Prejudice: But for counsels errors, there is a reasonable probability that the result of the proceeding
would have been different.
i. Reasonable Probability: One that undermines the confidence in the outcome.
a. Outcome: Sentence of conviction itself.

Normally, must be a specific showing of prejudice (Cronic).

o Cannot argue not enough time with counsel. Must demonstrate how not enough
time led to a specific problem.
b. Remember: No RIGHT to be offered a plea or to have the court accept it.
2. Deficient Performance: The performance prong of Strickland requires a defendant to show that
counsels representation fell below an objective standard of reasonableness.
B. Lockhart v. Fretwell: Even if there is deficient performance based on the current law (e.g. here, error of
law), if law changes in the interim, court is to use current law.
1. So if it was deficient performance under the old law, but new law makes it moot, then no claim.
C. Lafler v. Cooper: The mere fact that a fair trial ensued does not foreclose a finding of prejudice arising
from a plea bargain.
1. D who goes to trial instead of taking a more favorable plea may be prejudiced from either a
conviction on more serious counts or the imposition of a more severe sentence.

D. Missouri v. Frye: The 6A right to effective assistance of counsel extends to consideration of plea offers
that lapse or are rejected.
1. Ds must demonstrate reasonable probability both that they would have accepted the more favorable
plea offer had they been afforded effective assistance of counsel AND that the plea would have been
entered without the prosecutions canceling it or the trial courts refusing to accept it
II. When does the have the right to Effective Assistance of Counsel?
1. Trial
2. Direct appeal
i. SCOTUS said that 14th DP adequate way
a. If you screw up the appeal, you still make the claim under Strickland
3. Plea Bargaining (even if there is never a trial, you still this right)
i. BUT, must show reasonable probability that would have refused to plead and would have gone
to trial.
a. Example: plead guilty to count and dismissed 3

2-year sentence
o Lawyer did no research into the case

But co plead guilty to count 1, dismissed 2 and 3

o 1 year sentence
ii. Still not a viable claim; must show that he would have gone to trial.
1. Discretionary appeals
2. Post conviction
III. Requirements of counsel:
A. Basics:
i. Act like a lawyer
ii. Test the governments case
iii. Duty of loyalty
1. no conflict of interest
2. consult with the client; keep them up-to-date on important matters
iv. strategic decisions are for lawyers
a. this does not mean follow the orders; just keep them informed.
3. Duty to investigate
4. Skill
v. Even if you dont do one of these 4 main things, still may not violate prong 1 of Strickland.
a. Courts are to evaluate based on how it was at the time; not hindsight!
B. Never a Strickland Claim: Trial strategy
C. Clearly Meets Prong 1:
1. Fail to raise a statute of limitations defense
2. Fail to raise a timely appeal
3. Inconsistent strategies
i. A valid strategy, however, can be arguing that the court be found guilty on one count as opposed
to the higher counts.
4. Errors of law
i. E.g. failed to introduce mitigation for death penalty; counsel said he did not know he could
introduce it.
a. Said could not establish intent b/c shot below the waist (Cooper)
D. Time requirement for sentence to be prejudicial:
1. Even a few months difference in a sentence is sufficient to constitute prejudice.

Assignment Nine: Conflict of Interest Pages 241-257; Rule 44(c)

I. Types of Ineffective Assistance of Counsel
A. Deficient lawyer (Strickland)
B. Government interference
1. Actual or constructive denial of counsel
2. Preventing lawyer from talking to client overnight
i. Different though than the 10-15 minute recess; SCOTUS said that is ok to bar counsel from
ii. Tough to point to what lawyer did wrong in these cases; but govt did something that made it
impossible for the defense lawyer to do the job.
3. Prevent counsel from putting on proper case
4. Interference with right to retained counsel
C. Conflict of Interest
II. Cuyler v. Sullivan: The Standard for Conflict of Interest
A. Rule: In order to establish a violation of the 6th Amendments Right to counsel, a defendant must
demonstrate that an actual conflict of interest adversely affected his lawyers performance.
1. This is a two-part test: 1) Actual conflict and 2) adverse effect
i. Prejudice is not required.
a. Actual conflict where counsel is actively representing

. . . the possibility of conflict is insufficient to impugn a criminal conviction.

b. Adverse effect: must point to unfavorable decision made because of conflict.
III. Mickens v. Taylor: 44c
A. Rule: Rule 44c requires a judge to inquire if there are joined s, but not if the counsel represented
another in a substantially related matter, even if the court is aware of the prior representation.
IV. Judges Duty to Inquire
A. Before trial: Easier standard
1. If there is an objection, the judge must inquire.
i. Failure to do so results in an automatic reversal (Holloway).
B. After Trial: More difficult standard
1. Constitutional Duty: Inquire only if the judge knew or should have known about potential conflict
i. If judge does not inquire, still only reverse if shows an actual adverse consequence resulting
from the conflict. (Mickens).
V. Rule 44c (would not have affected Sullivan)
1. Joint representation
i. (A) Two or more s have been charged jointly under rule 8b or have been joined for trial under
Rule 13; and
ii. (B) The s are represented by the same counsel, or counsel who are associated in law practice.
2. Courts responsibility in cases of joint representation: The court must promptly inquire about the
propriety of joint representation and must personally advise each of the right to effective
assistance of counsel, including separate representation. Unless there is good cause to believe that
no conflict of interest is likely to arise, the court must take appropriate measures to protect each s
right to counsel.
3. If judge fails to make inquiry, almost certainly must show an actual conflict that adversely affects
lawyers representation. i.e. gives no separate remedy than the constitution gives under Mickens.
i. Does not mean that the judge does not have to follow the rules; judge must do it.
ii. There is a presumption that the judge will follow the rules.
VI. Steps in this analysis:

A. Step 1:
1. Identify the source of the possible conflict
i. More than 1 represented by a single lawyer (including two lawyers in the same firm)
ii. Can be one trial, can be more than one trial
B. Step 2: Ask if objected pretrial
1. If yes, trial judge must inquire and correct (probably give new lawyer) unless there is no evidence of
i. If no new counsel given or other correction made courts of appeals should reverse (Holloway)
unless it turns out that there was no conflict on review. i.e. error was harmless.
2. If no, did trial judge still have duty to inquire?
i. Rule 44c: must inquire in all multi- cases
a. Mickens uncoupled duty of inquiry from what must how post trial for reversal
b. s burden lighter only if objected prior to trial
c. Otherwise apply Sullivan test.
VII. Notes on self-representation
A. Indigent Defendants:
1. Do not get the right to choose their counsel like someone who can afford it
2. Do not have a right to someone who is not licensed
3. May represent yourself, however, even in a death penalty case
i. Right to self-rep is only a trial right
ii. Courts often appoint standby counsel in tough cases
VIII. Waiver?
A. You can waive a conflict (Wheat), but court CAN require a separate lawyer.
1. Even though you make a knowing and intelligent decision to waive, courts have an independent
interest in ensuring the proceedings in front of them are fair.
IX. Types of Conflicts: Which Test to apply?
A. Multiple representation Sullivan Test
B. s counsel facing other external pressures
1. Counsel may be a witness
2. Counsel threatened with disciplinary action
3. Sullivan sometimes, Strickland sometimes
i. To the extent that there is a question, more courts apply Strickland
C. s counsel facing conflicting incentives
1. Financial incentives
i. e.g. no taking a guilty plea for movie rights.
a. Apply Sullivan
X. Anders Brief
A. You get a case and you think there is nothing there
1. Permits counsel to seek leave to withdraw; must submit this motion.
i. Need to cite any portion that arguably gives rise to a claim for appeal and let client add own
a. Courts dont like them. Same amount of work as a regular brief.
Discovery and Disclosure
Assignment Ten: Disclosure by the Prosecutor Pages 1135-63; Rule 16, 26.2
I. Overview
A. Discovery: Refers to local rules; e.g. rule 16, must turn over

B. Disclosure: not a term of art, but refers to the prosecutors pre-trial obligation to turn over certain types
of information based on the constitution.
1. Arguments for Broad Discovery:
i. Trials a search for the truth
ii. Helps give notices of charges
iii. Unequal resources
iv. Conserves overall resources
v. Cases more likely to settle
2. Arguments for Narrow Discovery:
i. Facilitate perjury
ii. Witness intimidation and tampering
iii. Can lead to better information
iv. Defense counsel much more likely to accept information given by government as opposed to
going out on his/her own; that information thats out there may be better than what is given.
v. Defense counsel can be busy, so more likely to accept at face value
vi. Unfair to Prosecution (Learned Hand view)
3. Discovery Framework
i. Read the rules: no two systems exactly alike
ii. Know your judge and local rules
iii. Largely statutes and rules, but a constitutional backdrop
a. 5th: privilege against self-incrimination
b. 6th: right to counsel
c. 5th/14th: right to due process (Brady)
C. Rule 16: Governing rule for discovery in the Federal System
1. What a defendant gets:
i. Own statements
ii. s criminal record
iii. documents and tangible things
iv. reports of examinations and test
v. expert witness information
a. Notably, a defendant does NOT get a list of witnesses or witness statements
D. Defendants Statements Rule 16a1
1. Definition of Written or Record:
i. Near contemporaneous, near verbatim
a. If not written or recorded, can get part of the written report containing the substance of the
statement IF the defendant knew he/she was talking to a cop.
2. Gets oral statements IF the defendant knew he/she was talking to a cop.
E. Governments Discovery Obligations
1. 16a1d: criminal record
2. 16a1e: documents and objections
i. Gun, drugs, fraudulent medical bills, crime scene
ii. Material to , or govt intends to use in case-in-chief
3. 16a1f: reports of exams and tests
i. Fingerprint / dna
ii. Material to , or govt intends to use in case-in-chief
4. 16a1g: expert witness information
F. Discovery from Government:
1. item within possession, custody, or control
2. P intends to use it in case-in-chief
3. Material to preparation of defense

4. Docs or objects belong to

G. What Defendant does not get:
1. Witness names and statements Rule 16a2 (Courts have said that while the rule does not explicitly
state this, this is how they interpret it.)
i. Jencks Act, Rule 26.2
a. Very similar to rule 16 in terms of a statement being nearly verbatim and nearly
ii. Only after witness testifies on direct at trial
iii. Rationale: protection witnesses
a. Court may give a continuance to prep
2. Work product (16a2)
i. Material prepared by P or other government agents in connection with the investigation or
prosecution of case
II. Brady v. Maryland: The case
A. Rule: The suppression by the prosecution of evidence favorable to an accused upon request violates
due process where the evidence is material either to guilt or to punishment, irrespective of the good faith
or bad faith of the prosecution.
1. In other words, P violates the Due Process Clause by suppressing evidence
i. This is a Post-Trial challenge
a. Review of material: Need not ask; but if P says the info is not Brady, very difficult to get a
judge to do an in camera review. Only chance is if you give a specific request for a specific
b. Timing:

Must Disclose in time for defendant to make effective use of the evidence at trial.

Brady material is not discovery; can disclose late in the game.

o Would want to turn it over earlier to make the defense think it is not important.
III. U.S. v. Bagley:
A. Rule: Impeachment evidence is Brady material
B. Rule: Regardless of request, favorable evidence is material, and constitutional error results from its
suppression by the government if there is a reasonable probability that, had the evidence been disclosed
to the defense, the result of the proceeding would have been different.
1. A showing of materiality does not require demonstration by a preponderance that disclosure of the
suppressed evidence would have resulted ultimately in the s acquittal.
i. The touchstone of Bagleys materiality aspect is reasonable probability of a different result. A
reasonable probability of a different result is accordingly shown when the governments
evidentiary suppression undermines confidence in the outcome of the trial.
C. Rule: This is not a sufficiency test. A need not demonstrate that after discounting the inculpatory
evidence in light of the undisclosed evidence, there would not have been enough left to convict.
D. Rule: If there is constitutional error, no need to apply a harmless-error review.
E. Rule: Suppressed evidence to be considered collectively, not item by item.
1. Constitution does not demand an open file, and it is not violated every time a prosecutor fails to turn
something over that may be helpful.
IV. Kyles v. Whitney:
A. Rule: Materiality does not require preponderance, but also requires more than possibility.
1. More than just it could have changed the jurys outcome; it requires a prediction that the jury
would have done something different.
V. Prosecutors Duty to See that Justice is Done
A. Neither side can present perjured testimony
B. P cant allow information known to be false to stand uncorrected (Napue v. Illinois).
1. If you learn that something is false, you must correct that.

VI. U.S. v. Ruiz: Plea Bargain Discovery

A. Rule: The Prosecution is not required to disclose impeachment information prior to entering into a plea
1. This does not answer whether other Brady material, such as the ballistics report, must be turned over
ahead of time.
Assignment Eleven: Disclosure by the Defense and Sanctions Pages 1119-35; Rule 16
I. Overview
A. Rule 16a2
1. Docs and Objects
i. Docs, data, photos, tangible objects, buildings or places
ii. P must have provided same information on s request
iii. must intend to use the item in his case-in-chief (IMPORTANT)
2. Reports of exams and tests
i. results of reports of any physical or mental exam, scientific tests
ii. intends to use in case-in-chief, or intends to call witness who prepared report
3. Experts
i. witness opinions, the bases and reasons for those opinions
ii. witness qualifications
B. Rule 16b2 What the government does not get:
1. work product
2. statements made to the or attorney by:
ii. Government or defense witness or
iii. A prospective government or defense witness
II. Williams v. Florida: Alibi Requirement
A. Rule: The 5th Amendment does not bar disclosure of an alibi during pre-trial discovery.
1. Wardious v. Oregon: State must have reciprocal requirements for alibi or the state is invalid under
the Due Process Clause.
B. Defendants Obligations Pre-Trial
1. Rule 12.1
i. On request of P, must give notice of any alibi
ii. must tell where he was, and witnesses (name, address, phone) who can corroborate
a. In return, the P must then reveal witnesses who will put at crime scene, plus any rebuttal

If worried about safety, can get protective order to excuse compliance

2. Williams rationale applied to series of affirmative defenses:
i. Rule 12.2 notice of intent to claim insanity
ii. Rule 12.3 notice of public authority defense
a. Other defenses:



III. Sanctions for Defense Rule 16d2
A. What can a judge do if lawyer fails to comply with a discovery order?
1. Continuance (most often used)
2. Allow other lawyer to argue to jury about suspicious circumstances of discovery
3. Make evidence inadmissible

4. Jury instructions
5. Mistrial
6. Hold party or lawyer in contempt
7. Dismiss
8. Judge can also use imagination
9. Refer to disciplinary committee
IV. Taylor v. Illinois:
A. Rule: Judge may preclude a witness from testifying for the defense.
1. It is not per se unconstitutional (in violation of the 6A), but not recommended.
i. Exception: Rule does not apply to the Defendant.
B. Rule: Court does not have to impose the least serious sanction.
1. Judges are concerned with the following in failures to comply with a discovery order:
i. How easy was it to comply?
ii. Good or bad faith by counsel
Guilty Pleas and Plea Bargaining
Assignment Twelve: Guilty Pleas; Background on Plea Bargaining Pages 1165-93; Rule 11
I. Arraignment Rule 10
A. An arraignment must be conducted in open court and must consist of:
1. Ensuring that the has a copy of the indictment or information;
2. Reading the indictment or information . . . stating the substance of the charge; and then
3. Asking the defendant to plead to the indictment or information. (this is the only thing a has to do.)
B. The defendant may waive arraignment with the judges approval
II. Pleas at Arraignment Rule 11a
A. Guilty, no guilty, nolo contendere (no contest)
1. Nolo contendere:
i. does not admit guilt, just does not contest charges
ii. Result is virtually same as a guilty plea
a. Still convicted, still sentenced in same way
b. Difference: not an admission of guilt that can be used in a later civil case.
iii. Requires court permission, not Ps
iv. Court must consider parties views and the publics interest
2. No NGI - just pleads guilty (NGI insanity)
B. Initial plea of NG can be changed later
1. Change of plea hearing
C. Conditional Pleas: Rule 11a2
1. Can plead guilty and preserve issues for appeal
2. Requires approval by both the court and the P
D. Plea colloquy: Rule 11b
1. Court may put under oath
2. Court must address personally in open court
3. Before accepting guilty plea, court must ensure
i. Knowing
ii. Voluntary
iii. Factual basis
III. Boykin: Rule: Constitutional error without an affirmative showing that the plea is intelligent and
A. Constitutional Protections in play:

1. 5A Self-incrimination
2. 6A Right to a fair, public, and speedy trial
IV. Requirements for a Valid Guilty Plea
1. Must be knowing [R. 11(b)(1)]
a. Whats the pleading guilty to

The nature of the crime to which he is pleading guilty

o More than being told what the crime is; must understand the elements of the crime
to which he is pleading guilty.
a. E.g. 2nd degree murder includes the intent to kill.
Must explain only the critical elementsbut most courts will explain each
Need not inform of potential defenses

Must know the minimum and maximum penalties

i. Rights giving up with plea
b. Jury trial
c. Privilege against self-incrimination
d. Right to confront accusers
e. Have P prove case beyond reasonable doubt
f. Right to counsel at trial
ii. Consequences
g. Max penalty
h. Mandatory minimum
i. Applicability of sentencing guidelines
j. Forfeiture
k. Restitution

No need to inform of collateral effects

o But recommended: if the plea is to a felony offense, consider asking the
o Do you understand that a conviction may deprive you of valuable civil rights, such
as the right to vote, the right to hold public office, the right o serve on a jury, and the
right to possess any kind of firearm?
o [If not citizen]: do you understand that your plea of guilty may affect your
residency or your status with the immigration authorities?
2. Must be voluntary [R. 11(b)(2)]
i. Government may not coerce a guilty plea, but may induce or encourage one
ii. Must ask personally if threatened or received improper promises
a. Has anyone attempted in any way to force you to plead guilty or otherwise threatened you?
Has anyone made any promises or assurances of any kind to get you to plead guilty (other
than those in the plea agreement)?
3. Must have a factual basis [R. 11(b)(3)].
i. Court must have factual finding for each guilty plea
a. No standard
b. Judge just must be convinced that if trial occurred there would be a factual basis

NOT required for no contest plea.

ii. Can come from almost any source
a. Recommended: have the explain and assent to the crime(s) charged.
iii. Particular issue in Alford pleas.
V. U.S. v. Dominguez: Overturning a Guilty Plea on grounds that the Judge did not abide by Rule 11
A. Rule: A who seeks reversal of his conviction after a guilty plea, on the ground that the DC
committed plain error under Rule 11, must show a reasonable probability that, but for the error, he
would not have entered the plea.

1. Note: If judge forgets parts of Rule 11, can search the record to see whether the client was informed
by counsel; look for evidence that there was an explanation.
i. Not recommended, but it is a way to avoid a reversal.
VI. U.S. v. Broce: What you lose when you plead guilty
A. Rule: A defendant loses every claim when pleading guilty other than those that both (1) suggest the
government lacks the power to punish the at all and (2) can be resolved without further fact-finding.
1. In this case, the defendant waived his right to raise a double jeopardy claim.
2. Also waive claims like a Miranda violation.
VII. North Carolina v. Alford: Alford pleas
A. Rule: A criminal penalty may be imposed via a plea of guilty without an admission of guilt by the
B. Rule: Under Rule 11c, courts require a higher standard of a factual basis to ensure that a defendant is
not pleading guilty to a crime that he/she did not commit.
1. Primary source of the factual basis is absent (the defendant), so a particularly high standard is
i. U.S. Attorneys Manual on Plea Bargaining:
a. Avoid except in the most unusual circumstances, even if no plea agreement is involved and
the plea would cover all pending charges . . . can create an appearance of prosecutorial
b. We want the jury to figure this out.
Assignment Thirteen: Plea Bargaining Pages 1193-98, 1206-23, 1246-50; Rule 11
I. U.S. v. Brady: Plea Bargaining is Constitutional
A. Rule: Prosecution may induce a plea through a plea bargain
1. Can encourage or cause, but cannot coerce
i. No misrepresentations
ii. No threats
iii. No improper promises
a. Offer to remove the death penalty is permissible
II. Plea Bargain Process
A. Parties work out a deal and (typically) reduce to writing
1. Rule 11(c)(1): In return for a guilty plea, P may:
i. Type A: no bring, or dismiss, other charges
ii. Type B: recommend, or not oppose, sentence request
a. Cannot withdraw plea
iii. Type C: agree to specific sentence or range (must be approved by court)
a. If judge rejects the deal, is no longer bound to plea guilty and can withdraw plea
iv. Other inducements:
a. Reduce severity of charges
b. Obtain cooperation from
B. Parties go to court
1. Change of plea hearing if previously pled not guilty
C. Reveal terms of agreement in court (r. 11(c)(2))
1. For good cause can be done in camera
D. Court considers whether to accept the plea
1. Type A, C, judge accepts, rejects, defers
2. Type B, judge tells he/she cannot back out
i. Not bound by any recommendation; if you do not like it, now is the time to get out. Once I
accept, youre screwed.

E. Hypos:
1. Argue that you were threatened by someone else
i. PLEA OK: insufficient to get the plea thrown out; NEED STATE ACTION
2. P said had a really strong case and should plea guilty; turns out that he did not have a strong case
i. PLEA OK: Maybe unethical, but ok
3. Offer to plead guilty to murder and I will not seek the death penalty; turns out that death penalty not
available for this crime
i. PLEA NOT OK: courts have said that lying about legal matters can make a decision to plead
4. Plead guilty or your business will be scrutinized by a grand jury for a long time. Guy is justu a bad
guy, so P wants him to plead and might be vulnerable to an investigation to his business.
i. PLEA OK: even if things are not related to the charge under consideration, as long as the P can
do the act anyways, then its ok.
5. P gives report saying that there were fingerprints everywhere; then confesses. Turns out the report
was fake.
i. PLEA NOT OK: making up physical evidence or reports of physical evidence is sufficient
6. I will lower the charges to disorderly conduct from soliciting prostitution if you resign from State
Attorney General
III. Bordenkircher v. Hayes: Prosecutorial Discretion
A. Rule: Prosecution has wide discretion on how to proceed in a plea bargain
1. Court permitted P to reindict on a higher crime when the defendant turned down an offer to plead
guilty to a lesser charge
2. Court says this is not punishing him for exercising his trial right; P is openly presenting the with
unpleasant alternatives of forgoing trial or facing charges on which he was plainly subject to
i. Court emphasized that the P had made the defendant aware of what would happen if he did not
plea guilty.
IV. U.S. v. Pollard: Wired or Third-Party Pleas
A. Rule: Wired Pleas are permissible (e.g. not filing against wife)
1. Requires highest duty of good faith and fair dealing
i. Was there PC to charge the other person with the crime?
ii. Did admit that the plea was voluntary in colloquy?
iii. Was court aware of the tied agreement?
V. Newton v. Rumery: Release-Dismissal Pleas
A. Rule: Release-Dismissal Agreements are permissible
1. Factors:
i. Sophistication of
ii. Whether the agreement was revealed to judge
iii. Seriousness of the crime
iv. If was represented by counsel
v. Legitimacy of reason for dismissal
B. Rule: (from class): Attorneys may not stipulate to facts they know to be untrue
C. Rule: (from class): Judges may not participate in plea negotiations (Rule 11(c)(1))
VI. Plea Withdrawals: Timing is everything
A. Before court accepts the plea
1. For any reason or no reason (Rule 11(d)(1))
B. After plea accepted but before sentence

1. Any fair and just reason or

i. If court rejects plea bargain (Rule 11(d)(2))
a. Fair and Just reason:

No absolute right to withdraw plea

o Must be more than a change of heart

o Was rule 11 followed?
o How much time has passed?
C. After sentence
1. Only on direct appeal or collateral attack (Rule 11(d)(3))
2. Rule 11 violations harmless error applies 11(h)
i. McMann v. Richardson:
a. Coerced confession assume would have been inadmissible at trial
b. Court: plea deal breaks illegality

Conviction not based on confession; based on plea.

c. Remedy for : ineffective assistance of counsel
D. Question: What about the P? Can the P withdraw for any reason or no reason?
1. Uncertain, but in some states say the P can also withdraw as well. i.e. anyone can change their
minds until the court accepts the plea.
i. However, both states and the feds just follow through on the deals.
VII. Santobello v. New York: Remedies for Breach of Contract (Plea Deal)
A. Rule: P must keep their promises: When plea rests in any significant degree on a promise or
agreement of P, such that it was part of inducement to plead, the promise must be kept.
B. Rule: Failure to keep a promise requires an automatic reversal. (No showing or prejudice reqd)
C. Rule: Plea agreements construed against government.
D. Remedies:
1. Start plea process again or
2. Specific performance
i. Later case: Defendants preference is relevant, but not decisive.
Assignment Fourteen: The Right to a Jury and Jury Selection Pages 1271-74, 1297-1313; Rules 23-24
I. Overview
A. Constitution: Article III, 2: Trial of all crimes, except in Cases of Impeachment, shall be by Jury; and
such Trial shall be held in the State where the said Crimes shall have been committed . . . .
B. 6th Amendment: In all criminal prosecutions, the accused shall enjoy the right o a speedy and public
trial, by an impartial jury of the State and district where in the crimes shall have been committed.
C. Duncan v. Lousiana: Rule: Right to a Jury Trial is a Fundament Right
1. Taylor v. Hayes: Right does not apply if imprisonment is six months or less.
i. Must be a single charge; cannot stack charges.
a. Why do we have it today?

We keep it today because it adds credibility to the system; a sense of integrity if it was
just a judge. It also makes a difference for how we try cases. We want lawyers to talk
to people in normal people language. You must persuade a normal person why this is
right. We want a lay person judging the credibility of witnesses and evidence.
D. Size of the Jury
1. Federal: 12
i. Court can excuse 1 during deliberations without agreement of parties
ii. Parties can stipulate jury of less than 12

2. State: Between 6 and 12

E. Voting
1. Federal: Must be unanimous either for guilt or acquittal Rule 31
2. States: can be less than unanimous
i. 10-2 is ok (plurality)
ii. 9-3 probably ok (pre-incorporation decision)
a. court says the concept of reasonable doubt is jury wide. Not individual.

Supreme Court has said, however, that only requiring 5 of 6 for a guilty verdict is
insufficient. That crosses the line. If you have six, then you must be unanimous.
F. Waiver: Can waive, but most people do not.
1. Rule 23a: If the is entitled to a jury trial, the trial must be by jury unless
i. the waives a jury trial in writing;
ii. the government consents; and
iii. the court approves.
G. Selection Process:
1. All eligible jurors (voters, maybe drivers license)
i. Court has said that it is rational to rely just on voter lists because it shows some interest in civic
2. % goes on Jury Wheel
i. Master wheel
ii. Qualified wheel
3. 30-100 in Jury Pool called to court
4. voir dire process of elimination
i. not qualified, hardship
ii. challenges for cause
iii. peremptory challenges
a. I get to excuse them because I say so
H. Voir Dire Challenges
1. Questioning by the judge
i. Enormous discretion vested in the judge for conducting voir dire (abuse of discretion)
a. One time where it might work is when there is pretrial publicity
ii. Sometimes have to ask about race
a. When race is inextricably bound to the facts of the case

But, not all interracial crime

b. Must ask about race on request in capital case
2. Challenges for cause
i. Enormous discretion vested in the judge (abuse of discretion)
a. e.g. if judge accepts or denies reason given by counsel, tough to overturn that decision.
ii. to challenge judges decision, counsel must show actual evidence of bias
a. e.g. crime victim lies; says he/she was not a victim but was; lied to get on the jury.

However, even a person seeking a job in the P was not sufficient; did not show actual
o Need to show that the juror would be unlikely to follow the law and the
instructions given to him/her.
iii. Witherspoon: Capital
a. Often called Witherspoon excludables.

People who say they would convict but would never employ the death penalty.
o SCOTUS said someone who refuses to follow the law is grounds for excusing for
II. Batson v. Kentucky: Equal Protection Challenge

A. Rule: The EPC forbids the prosecutor to challenge potential jurors solely on account of their race or on
the assumption that black jurors as a group will be unable impartially to consider the states case against
a black defendant.
B. Rule: How to proceed on a Batson Challenge:
1. Step 1
i. must show he is a member of cognizable racial group and used peremptories to remove
members of that group
a. Johnson v. California doesnt take much
ii. entitled to rely on fact that peremptories allow P to discriminate against blacks if he/she wants
a. P cant argue acting in good faith.
iii. Any other circumstances/evidence to show Ps discriminatory motive
a. Johnson v. California: doesnt take much to satisfy this step; judge just has to draw inference
of discrimination.

If court finds made prima facie case, move to next step

2. Step 2
i. Burden shifts to P to explain peremptories; give race-neutral reasons
a. Most plausible explanations, if believed, will satisfys Ps duty of race-neutral reasons
b. Judge has great discretion

Does not have to rise to the level of a challenge for cause

Does not have to be persuasive; just has to be race-neutral

o P. 1311 Purkett v. Elem: wild hair and a beard. Just permitted it.
a. Court should focus on the genuineness, not reasonableness.

Could argue that in step 3 it was a pre-text.

c. May have a discriminatory effect, but cannot have discriminatory purpose.

Can even strike b/c of the language situation and an interpreter.

3. Burden shifts back to to show pretext
i. Burden always stays with to show intentional discrimination (EP violation).
a. Want to be able to say struck that juror but did not strike another juror with the same
C. Evolution of Batson:
1. JEB v. Alabama: Gender
i. Rule: Cannot strike on the basis of gender.
a. OConners concurrence: That the Court will not tolerate prosecutors racially
discriminatory use of the peremptory challenge, in effect, is a special rule of relevance, a
statement about what this Nation stands for, rather than a statement of fact.
ii. Rule: Even if one can prove a stereotype, it is legally irrelevant.
2. Powers v. Ohio: Rule: White defendant has standing to raise a Batson claim for the Batson right
applies to both the defendant and to the prospective jurors.
3. Georgia v. McCollum: Rule: State can raise a Batson claim.
i. There is state action because it takes place in a courtroom, and jurors are the ones who get to
raise it.
4. Rivera v. Illinois: Rule: Peremptories are not themselves of constitutional status. As such, the
erroneous denial of a peremptory challenge does not lead to an automatic reversal.
i. Leipold: The defendant need not be the same race as the struck juror.
ii. Leipold: Not limited to criminal cases.
Assignment Fifteen: Influences on the Jury Pages 1378-99; Rules 29.1, 31
I. Darden v. Wainright: Improper Commentary in Closings

A. Rule: When asking whether a prosecutor has improperly argued, must ask whether the commentary so
infected the trial with unfairness as to make the resulting conviction a denial of due process?
1. Very difficult standard to overcome
2. Factors for a court to consider:
i. Did P misstate law or evidence?
ii. Did argument burden right to remain silent or 4A right to have evidence excluded?
iii. Were Ps comments in response to s comments?
a. Just b/c the makes an improper statement does not permit the P to do so as well, but it does
make it more likely that it will be found harmless.
iv. How pervasive were the comments?
v. Did trial court give curative jury instructions?
vi. Did defense counsel object?
vii. Strength of the other evidence? (big)
II. In closings, the following are unacceptable:
1. attempt to just inflame the jury
2. personal opinions
i. one reason is that juries will think the P knows more than they heard.
3. Introduction of issues unrelated to guilt
i. E.g. dept of corrs at fault
4. Reference to excluded evidence
5. Misstating the law or the facts
III. Taking the case from the jury
A. No directed verdict from P
B. Judgment of acquittal
1. At close of P case, at close of whole case, or after verdict
2. Was evidence insufficient to sustain conviction?
3. If judge grants JoA before verdict, case over.
i. No appeal, nothing
4. If judge grants JoA after verdict, P can appeal
IV. Jury Deliberations
A. Deadlocked juries
1. Sending the jury back
2. Inquiring about numerical split
i. In fed system, judge cannot ask
a. Fear is that it would be coercive to those who are in the minority
ii. In states, some can ask
3. Allen (Dynamite) charges:
i. Each juror . . . should examine the question submitted . . . with a proper regard and deference to
the opinions of each other . . . and should listen, with a disposition to be convinced, to each
others arguments . . . and consider whether that juror has reached the proper result.
a. Judge must be very careful not to step over the line
4. If no result, mistrial occurs
i. Government may retry the case.
B. Inconsistent verdicts
1. Permissible; no challenge allowed.
i. Tolerated because of the possibility of jury nullification
C. Impeaching the verdict
1. May poll the jury
2. Fed R. Evidence: 606(b): not going to hear about what went on

i. A juror may not testify as to any matter or statement occurring during . . . deliberations, or about
the effect of anything on the jurors minds . . . EXCEPT
a. That a juror may testify on whether extraneous prejudicial information was improperly
brought to jurys attention, or, whether any outside influence improperly brought to bear on
the jury.

i.e. if it is an EXTERNAL influence, can discuss

Internal, not going to impeach the verdict

o Cant even make the argument! Not that it is okay that they are, e.g., drinking. You
just cant discuss it.
Assignment Sixteen: Appellate Review and Harmless Error Pages 1565-81; Rule 52
I. Chapman v. California: Constitutional Errors
A. Rule: In order for a court to find a constitutional error harmless, it must find that the error was
harmless beyond a reasonable doubt.
1. Arizona v. Fulminate: Rehnquist notes that the Court has recognized that most constitutional errors
can be harmless.
II. Error doctrine
A. First ask whether it was a structural error.
1. Structural errors: Automatically harmful error.
i. Denial of lawyer, bad reasonable doubt instruction, biased judge
B. If it is a Trial error, then ask whether it was constitutional or non-constitutional.
1. Non-Constitutional Error:
i. Standard: Did the error have a substantial and injurious effect or influence in determining jurys
a. must show that the error seriously affected fairness, integrity or public reputation of

Burden of proving error: on

Burden on proving error is harmless: P

o P demonstrates harmless by the rest of the evidence was enough. How important
was it? How much did it influence the jury?
2. Constitutional Errors: Chapman.
C. Note: Some errors have harm built into them.
1. E.g. Brady, Strickland, failure to sever