CrimProAdjOutline | Plea | Bail

NORMS: (41-52

Accuracy: - Correct results are the goal of the criminal justice system. There is a high standard of proof to protect the defendants from wrongful adjudication. Sometimes there is no way to know if justice is actually being served. Ex: defendant could be of bad character but maybe innocent and there are no witnesses how do you know whether to prosecute? There are so many factors that go into accuracy including: right to counsel, impartial jury, public trials, and defendant’s right to call witnesses.

Fairness: - What constitutes fair? Equality Limited-Government Provisions: - The bill of rights limits the ability of the government to interfere with the people (to protect us from a central government). - The fifth amendment is what truly protects the citizenry. Efficiency: - Balance between speedy trial and the rights of the party, there has been some damage to the system because the Judge wants to clear cases from his calendar so it may gloss over too many cases it may lead to conviction or release of defendants due to the need to clear the cases. Plea Bargaining really speeds up the process, but is this justice if the defendant pleads guilty just to hedge his/her chances? Without plea-bargaining the system would bog down due to the amount of time needed to try all the cases.

1. System begins at arrest and filing of the complaint. 2. After arrest a hearing is held pertaining to bail (arraignment) [in lesser crimes there is no hearing, the police release the defendant with a set bail]. This is an issue of freedom. They set the conditions of containment. BAIL Ways to get people out of jail: 1. Police let you out on bail or with a citation 2. Release on recognizance (sign a certification to show up again) 3. Supervised or Unsupervised Release (sometimes the defendant is required to get treatment) 4. Unsecured bond on failure of defendant to show; only applies if defendant fails to show 5. Deposit bond (10% program): defendant can get out by posting 10% of the bail amount but gets the money back if they show up in court. 6. Full bond: secured; generally you go to a bailbondsman and he will keep the 10% and he basically guarantees that you will show *Stack v. Boyle p.769: - Excessive bail under the 8th amend. - Court finds that there is no right to pre-trial release. - Your right to release is conditioned upon assurance that you will not flea the jurisdiction and will show up in court for your hearings. - Therefore, bail can only be so high as to provide adequate assurance that the defendant will show for trial. If a bail amount which is greater than is usually fixed for a crime is applied evidence should be produced to support that unusually high bail. The Federal Reform Act of 1984 (note 8 p.773) - Provides that a judicial officer may not impose a financial condition that results in the pretrial detention of that person. This is to force the judge to use the preventative detention provisions of the statute. There is racism in the system, because the whites make bail far more often and those that make bail are less often convicted because if in jail at time of trial it seems as though you are already guilty.

Furthermore. . there are factors for determining whether bail can be denied: nature and seriousness of the charges. Salerno p. then preventative detention is fine.Public Defender does not have to be supplied at the bail hearing. and the nature and seriousness of the danger posed by the suspect’s release.” Sexual Predator Laws: . 50 of supplement: “the judicial officer may not impose a financial condition that results in the pretrial detention of the person. Court can extend the commitment indefinitely. Gillespie p.10 of the supplement: . outweigh an individual’s liberty interest.PREVENTIVE DETENTION *United States v. .Judges might set bail high to prevent perpetrator from fleeing or being a danger to society. It is for rehabilitation of the person’s mental health. Trentonian Factor: Appellate Judges do not reverse high bail because they don’t want to be put in the Newspaper and have the perp injure someone else. However it should not be used to ensure that defendant shows at trial. the arrestee’s background and characteristics. the government’s regulatory interest in community safety can. Bail Reform Act etc.Therefore if the goal is to protect community safety. in appropriate circumstances.No constitutional right to bail.Court holds that preventative detention under the Bail Reform Act is regulatory and not punitive (detention cannot be forever due to the speedy trial statute which requires a trial within 180 days of indictment). .Burden to prove need for civil commitment is “danger to self or others.774: . . Bail Reform Act of 1982 §3142(c)(2) p.This is not classified as punishment.” Involuntary Civil Commitment: . substantiality of the Government’s evidence. In their case they are more likely to detain in capital cases because the defendant’s are more likely to flee.However. or be seen as soft to the public in big cases. . . a sexual predator is evaluated and the court can be persuaded that defendant will be a continuing danger.This is seen as ok because it is regulatory and not punishment . you can be detained and it is not considered excessive. . because they see bail as part of the cost of doing business. *Rothgery v. This is also often the case with drug dealers. . .At the end of a sentence.This can be a problem because the defendant can hurt his case if he speaks at the hearing. .States are not subject to the Bail Reform Act.If acquitted by reason of insanity person is put in a mental institution for upwards of the maximum sentence for the crime.

The prosecutor can bring a high number of charges but the judge will not sentence on them all. Cont. (State is far more public whereas fed is more private) The state prosecutor can screen cases in 3 ways: 1.800: . or feels that they are incompetent. then a complaint is issued and charges are rendered. Prosecutor should not bring or seek charges greater in number or degree than can reasonably be supported at trial or to fairly reflect gravity of offense. 5. like the case and go for an indictment 2. . . . . dismiss the case if it is sucks. Prosecutor doesn’t have to bring all charges that are supported by the evidence. . This is because the wife often doesn’t want them to and will refuse to testify. 3.He wanted discovery on the issue. Arrests are made first.Rationale: The majority is concerned with efficiency because they feel that freely allowing discovery in these matters will bog down the system.Supreme Court held that the defendant failed to establish a threshold showing. Prosecutor should use subpoena power to compel.Reasons to bring all charges: To get the defendant to plea bargain or in case the prosecutor does not think the greater charges will garner convictions. *United States v. 4.PROSECUTORIAL DISCRETION IN CHARGING: P. . The standards are in no way exhaustive and are not always applicable. the prosecutor chooses which cases to prosecute and then arrest warrants are issued for those defendants. is concerned with fairness and felt that the district court did not abuse its discretion by allowing discovery. . . the office. 2. Where witness refuses to testify. which is that the Government declined to prosecute similarly situated suspects of other races. They are kept secret. Merger: All similar crimes can merger the lesser offenses into the larger offenses. however.AG can take over any case and can even take over a whole office. or protecting someone. 793 At the federal level. corrupt.The dissent. Standards of the Bar p. He may do so where he wants to take pressure off a prosecutor. or 3. Armstrong p. . downgrade the crime and send it to municipal court Attorney General: . Prosecutor should not bring charges absent probable cause or sufficient admissible evidence to support conviction.Defendant claimed to be selectively prosecuted because he was black. Cases which the prosecutor decides not to prosecute do not have arrests. Domestic Violence Crimes tough for the prosecutor to charge.Therefore. the defendant is not entitled to discovery on the selective prosecution issue.Has supervisory powers over the prosecutors even though the prosecutors are appointed by the governor.797: 1. State level is different.

Defendant claims that this was unconstitutional. . NOTES: . Therefore.Prosecutor brought charges for a harsher penalty after the defendant appealed his conviction. If the case is not good.Court held that counsel would have affected the trial so counsel is necessary for preliminary hearings. Alabama p.812: . .Court states there has to be an analysis of: o Whether there was a chance for substantial prejudice and o Whether presence of counsel would avoid that prejudice. which would make the hearing moot. the Judge will dismiss it and take it off the prosecutor’s hands without him having to take blame for it. . a prosecutor would try to avoid this by indicting the defendant. JUDICIAL SCREENING – PRELIMINARY HEARINGS: p.* Blackledge v.808: .Counsel not provided for defendant at the preliminary hearing. In most states the prosecutor must have notice of a preliminary hearing. which is ordered by a Judge. .Courts expect greater probable cause where no warrant was issued for the arrest. Perry p.The Supreme Court held that the Prosecutor has a right to bring charges for an increased punishment but not in order to punish defendants for appealing their convictions nor could the prosecutor bring greater charges in order to discourage appeals. . 812 Preliminary hearings are basically a chance for the defendant to look at the prosecutor’s charging documents. That way. the prosecutor may want to let it get to the preliminary hearing. They are also to screen cases *Cleman v.

The contempt conviction was upheld on appeal. . US p. show up and bring stuff (duces tecum) *Hoffman v. . . Notes: . and that the answers cannot possibly have such tendency to incriminate.The dissent however felt that the prosecutor has to be fair at the grand jury and should provide the info.838: .Therefore. location of evidence 3.Defendant was convicted of contempt for not answering questions about which he claimed his 5th amend privilege. . that the witness is mistaken. Supreme Court reversed holding that the privilege applies to answers that would support a conviction or provide a link in the chain of evidence. from a careful consideration of all the circumstances in the case. . to show up and talk(testify) 2.GRAND JURY SCREENING: 818-834. They are chosen the same way that jurors are chosen for voire dire and there is more leeway for excusing them because it can be a 24 month process. .“To sustain the privilege it need only be evident from the implications of the question in the setting in which it is asked. the rule for denying privilege is that it must be perfectly clear.grand jury problems make no difference once a verdict has come down from the real jury and the mistake is harmless beyond a reasonable doubt PREPARING FOR ADJUDICATION 5th Amendment privilege against self-incrimination is the most important privilege! Privilege can be used by a defendant who claims his innocence as well as the defendant who is guilty.Only issue to be decided at grand jury is probable cause and not to decide guilt.Court holds that prosecutor was not required to provide the grand jury with the exculpatory evidence. existence of evidence 2. 837-849 If the prosecutor does a good enough job indoctrinating the grand jury they should get whatever they want. Production could be testimonial in 3 circumstances: 1.Court said no supervisory authority to force prosecutor to disclose.Prosecutor failed to disclose substantial exculpatory evidence to the grand jury. Grand Jury is a good way to screen cases because you get a good feel from the jury preliminarily. *US v.” . that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result. Imposing such would run counter to the traditional function of the grand jury (and it is not their job to consider exculpatory evidence). Williams p824: . 2 types of subpoenas: 1.Rules of evidence for hearsay do not apply to grand jury. identification of evidence . .

5th amendment doesn’t apply because no one compelled you to make them. which were voluntarily created. the documents exist (government may not have known about their existence 2.Also. It is important for the prosecutor to build his case and collect the evidence before immunizing the witness. US .Testimonial evidence requires a communicative act. 844: Court holds that use immunity is constitutional The immunities overlap both state and federal jurisdictions and the immunized testimony cannot be used for any reason. 2. 2 types of immunity: 1. Production Issue: The act of turning over documents can convey three things 1.Government wanted tax documents and the court found that they were not involuntarily produced and that the incrimination happens at the creation of the documents therefore all voluntarily made documents are discoverable. *Kastigar v.To get around the 5th amendment privilege the prosecutor can grant immunity. transactional immunity: covers all convictions related to the testimony. .5th amendment only applies to testimonial acts not including participating in a lineup or submitting a blood sample. says “these are the records I believe you asked for” Immunity: . use and fruits immunity: transaction not immunized but testimony and anything that comes from that testimony (evidence as well) is immunized (so can still prosecute for that crime just cannot use that evidence or testimony). location of the evidence (possession/control of the documents) 3. US p. . . Compulsion of documents: . including impeachment (with the exception of perjury) . there is no privilege for documents.Fisher v.

this approach may turn up some interesting evidence or may lock in the witnesses testimony.In the states you can request a foreign jury as an alternative to a motion for change of venue (they bring in jurors from another county). . smooth and efficient trials 2. . 3 Goals of Pretrial Motion Practice: 1.Therefore.856: jurors are impartial if they can lay aside any impressions they had formed “and render a verdict based on the evidence in court. Good idea to change venue when defendant feels he cannot get an impartial jury. . *Irivn v. aside from for impeachment. Dowd p.Simmons: Police seized D suitcase from a friend’s house and he asserted his right to privacy in testimony regarding a motion to suppress. MOTION FOR CHANGE OF VENUE Venue is where the crime occurred. 11 hijacker case court held that he was going to be prejudiced in every jurisdiction in the US so no need to move it from Washington DC .PRETRIAL MOTIONS: P.Rationale: You should not have to sacrifice one constitutional right for another. The jury selection process of which defendant complains permits an inference of actual prejudice. a person has standing to bring a motion to suppress when their “legitimate expectation of privacy was violated”. facilitates plea bargaining MOTION TO SUPPRESS . Murphy Test p.” Foreign Jury: . or 2.However this is not possible at the federal level because the districts are too large. Of course it may have the opposite effect by pissing off the prosecutor and limiting the client’s access to a good plea bargain. file everything for which you have a colorable claim (if the case is not very strong or important. prevents prejudicing the jury with inadmissible testimony 3.858: Sept.e. . i. Furthermore.857: Two Pronged Inquiry 1.The government tried to use this testimony against him at trial and the court found that the testimony from the hearing cannot be used against you. Whether the setting of the trial was inherently prejudicial. the prosecutor may offer a plea or to dismiss to avoid all the work). Rule 21(a) motion to change venue based upon prejudice Rule 21(b) motion to change venue based upon convenience of the parties Note 7 p.850 One view on the issue is to paper the government to death.

MD p. as opposed to the process.Rationale: Court found that the state did not rely on the missing materials and that the defense had other means of proving innocence. .Rationale: The test moves focus to the result. when the defense requests materials it triggers a reciprocal obligation so you should not ask for anything you don’t want to give up [state can’t ask for things you don’t ask for]) *Brady v. the result of the proceeding would have been different. *US v. o Brady test is far more stringent with more for the prosecutor to lose because the defendant would be guaranteed a do-over. the government must provide all exculpatory evidence or else they are violating due process. Plus.Court held that alibis are not compelled and the statute did not affect his decision to claim it therefore the statute does not violate the 5th amendment. Bagley p.Dissent did not like the “Bad Faith” rule because it is almost impossible to prove and does not create a bright line. o Bagley creates an incentive for the defense to look hard for exculpatory evidence because there is no longer a guaranteed do-over. Puts burden on reviewing court to look at entire trial to see if the exculpatory evidence would have affected the verdict (no longer a constitutional violation) *US v. *AZ v.This thereby says that failure to disclose exculpatory evidence can be excusable.Holds that in a Brady case involving exculpatory evidence the Agurs standard of whether “there is a reasonable probability that.883: . .863: Upon request. failure to preserve potentially exculpatory evidence doesn’t constitute a denial of due process.864: NY case that rejects the Bagley view and accepts the Brady view. Agurs p.FL rule forced defendants to offer any alibi before the trial or the evidence was suppressed and in return the prosecution had to inform defendant of any witnesses to be used to rebut.Police failed to preserve potentially exculpatory bodily fluids.865: (KILLS BRADY) .Defendant argued that this rule forced him to testify against himself in violation of the 5th and 14th amendments. *Williams v.” is used.874: .Court held that unless bad faith on part of the police. . *People v. FL p. . state complied with both Agurs and Brady. Vilardi p. had the evidence been disclosed to the defense.DISCOVERY: p. 858-890 When requesting discovery ask for everything you want because you want to make the state defend its rights not to share.863: Obvious exculpatory evidence creates duty to disclose. . . (there is one caveat. . . Youngblood p.

.(a) Counts or defendants can be severed if there will be prejudice to a defendant or the prosecution.Court establishes categories to define types of prejudice: o When defendant may become embarrassed or confounded in presenting separate defenses o When Jury may use the evidence of one of the crimes to infer guilt in the other o When Jury may cumulate the evidence of the various crimes and find guilty where if severed they would not have found guilt . .(b) Defendants can be joined if all took part in the same action not all must be charges in all counts Rule 14 Fed Rules of Crim Pro: SEVERANCE . Defendant wants to sever because he feels it is prejudicial.The more charges the more likely the conviction and joinder effect was greater where case was weak.with jury or .“where there is smoke there is fire” theory and jury might confuse evidence and wrongly construe . *State v.892: .Man charged with the murder of 2 women and the cases were joined.Court found that joinder was not prejudicial because evidence of one homicide would not be evidence of the other.Offenses may be joined if of similar character.JOINDER AND SEVERANCE: Rule 8(a) of Fed Rules of Crim Pro: JOINDER .(b) Court can ask prosecution to hear in camera any statement by the defendant that prosecution wishes to use as evidence There is potential for bias in joinder: . based on same transaction or part of same scheme or plan. . . Reldan p.

Both sides usually agree to postpone the arraignment until right before trial to prevent triggering of the statute. defendants responsibility to assert his rights [theory is that is the defendant was being hurt by the delay he would be screaming about it. length of delay (must have some sort of triggering mechanism) 2.There is a problem with speedy trial doctrine. US: p 909: Affirms remedy of dismissal with prejudice when a speedy trial violation is found.898: .But it often doesn’t arise because both sides want to delay . negligence) will weigh against government [however the delay may be legitimate such as a missing witness] 3. *Barker v.US v. prejudice to the defendant Factors 3 and 4 are the most important. Pre-Indictment Delay: . if not screaming then not hurt by it] 4. Undue delay requires dismissal with prejudice. Federal Speedy Trial Act: .In the federal system the government has 6 months to try you .” . On one hand you want to be fair and not delay trial for long on the other hand you do not want to set criminals free due to delay. Wingo p. reasons for delay (neutral dealy (back log.SPEEDY TRIAL: 897-913 Guaranteed by the 6th Amendment. So court adopts a 4 factor balancing test: 1.A Due Process violation would “if it were shown at trial that the pre-indictment delay caused substantial prejudice to defendant’s rights to a fair trial and that the delay was an intentional device to gain tactical advantage over the accused. . Court found that he was not denied a speedy trial because he was waiting for result of his friends trial to use the result in his own trial. Marion . *Strunk v.Court rejects the demand waiver rule which would require a defendant to request a speedy trial because it goes against waiver law.

Court held that this was not ineffective assistance of counsel. When appealing Guilty Plea or Nolo Contendre: The case falls in the ambit of Douglas and a lawyer is required for the first appeal. . (for capital cases) *Betts v.931: Court held that in a criminal case the assistance of counsel is required to satisfy the 6th amendment. .931: counsel need not be appointed in all cases and left the decision to the discretion of the trial court where the standard would be failure to appoint counsel would be offensive to the common and fundamental ideas of fairness.951: picks up where Douglas left off.Court feels that failure to appoint counsel on first appeal is discriminatory because in CA everyone gets case looked at on first appeal. a misdemeanor. . *Gideon v. .6th amendment was not applied in Douglas because 6th only deals with criminal prosecution.946: .Defendant moved for ineffective assistance of counsel.Equal protection was never cited in the case but it appears to be the basis for the decision. Supreme Court holds that counsel is not necessary because jury trial not required for petty offenses (6 month prison term or less).924: .DEFENSE ETHICS: 914-931 Note 1 p. .919: Justice White is almost advocating an anything goes attitude for the defense counsel with exceptions for illegal acts such as making up evidence or to encourage lying. .938: . and there was a bench trial.Furthermore.Defendant charged with theft.Court finds if defendant will be sentenced with imprisonment then the right to counsel arises. *Douglas v. Rationale that the affluent would have a much greater chance of winning appeal because they could afford counsel.Defendant was indigent and convicted. there is no Due Process argument because DP only deals with a fair trial. The court feels that because there is no denial of access because the record is already developed and the appeal is at the discretion of the court. court found that to satisfy due process defendant required counsel. . He had appointed counsel and he wanted to appeal. Note 4 p. . that the indigent is not required to be given counsel. Wainwright p.Defendant wanted to commit perjury and lawyer knew and threatened to withdraw if defendant did so.930: Knowledge standard required to determine whether client will perjure himself.Harlan in the dissent says cannot be equal protection because it would mean that Gideon was wrong. . Illinois p. Whiteside p. . . Moffit p. CA p.Defendant appealed for lack of counsel.931: Defendant was indigent and couldn’t handle their own case.Case holds that an indigent is not required to have counsel for discretionary appeals to the Supreme Court.Note: A suspended sentence still leads to a right to counsel. Zealous advocacy… *Nix v. (overturns Brady) *Scott v. . Overturned by Gideon. Brady p. Alabama p. . *Ross v. RIGHT TO APPOINTED COUNSEL: 931-956 *Powell v.He argued that Argersinger requires appointment of counsel whenever there is a punishment of imprisonment.

966: Autonomy Right diminishes post-trial therefore upon appeal court can appoint counsel (no right to appeal so out of the 6th amendment context) Note 2 p. Slappy Note 11C p. it is a test to see if the counsel prejudiced the defendant. CA p. . • 2 components to the defendant’s argument must be proved: o (1) the defendant must show that counsel’s performance was deficient (including errors so serious that counsel was not functioning as counsel guaranteed by the 6th amendment) o (2) the defendant must show that the deficient performance prejudiced the defense.973: • Benchmark for judging any claim for ineffective assistance of counsel is whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. Note 5 p. .966: many people who represent themselves have an agenda and don’t want counsel because they won’t go as far as the defendant wants them to. 11 of supplement for Indiana v. • Not guaranteed perfect assistance just acceptable assistance.Question of whether the defendant can be allowed to proceed without counsel when he knowingly and intelligently elects to do so. Note 9 p.967: assistance of counsel is default position and the court will not ask if defendant wants to represent himself. See p. INEFFECTIVE ASSISTANCE OF COUNSEL: 973-1004 *Strickland v. if D is disruptive in his own representation than his self representation can be terminated.968: competency to waive counsel. Now about fair result where before it was about fair process. Note 5 p.However. • SO basically this is not a performance test. Morris v.Defendant should be made aware of the potential problems so they can make a wise choice. Edwards.Dissent: attacks the historical analysis because the constitutional argument is lacking because there is not express writing to grant this right.957: .Court holds that the right to make your own defense is in the 6th amendment by implication.992: Freedom to choose counsel does not apply to appointed counsel. Either because of ethics or would not sit well with the bar. o By stating that all rights go to the accused not to the lawyer of the accused the 6th amendment provides the right of the defendant to make own defense. It’s up to the defendant to request to represent himself. . . Washington p. Note 4 p.RIGHT OF SELF-REPRESENTATION: 957-73 *Faretta v. . (counsel’s errors deprived the defendant of a fair trial).1004: What happens where the appointed counsel knew the case would lose so purposely acted ineffectively by doing nothing to get defendant new trial? Appellate court suggested in these circumstances that the judge should ask the defendant if he was satisfied with the attorney in attempt to get him to waive his ineffective assistance of counsel claim. Bad tactics are not reviewable because not all tactics work out.

1017: . o Collateral consequences of the plea do not have to be explained by the prosecutor or the Judge (such as immigration law which may require deportation if convicted or meghan’s law) *North Carolina v. .) Note 2 p. US p.1029: .PLEA BARGAINING AND GUILTY PLEAS: 1017-34 Fed Rule of Crim Pro 11 purtains to Pleas Note 1 p. which is often the case. Statute: Note 3 p. .Defendant was fully aware of the consequences and he met classic waiver requirements.Defendant was then give the max sentence of 30 years and he later sought post conviction relief.1012: most defendants plead because they think it will lead to a more lenient sentence. . Furthermore.1011: there would be more trials without pleas which the author thinks may bring more reliable results. . Wired Pleas: Where one plea is contingent on another person’s plea is ok so long as the cases are connected somehow. . According to Fed R Crim Pro 11: Judicial participation in plea bargaining is not supposed to happen. Holding: the Judge can accept a guilty plea if the facts seem to negate innocence even if the defendant professed his innocence during his guilty plea.Defendant stated that he was pleading guilty to avoid the death sentence not because he was guilty. Where a case goes to trial.Defendant pled guilty to avoid the implementation of a statute which allows the jury to recommend the death penalty. Cont. the judge wants to seem firm on crime so they give harsher sentences because it is more public. knowing and intelligent *Brady v. Alford p. CHARACTERISTICS OF A VALID GUILTY PLEA: . Plea vs.1012: Judge Easterbrook thinks plea bargaining is best because it is good for both sides.Voluntary.Supreme Court upheld the plea because he was sufficiently aware of his circumstances and he made his choice voluntarily with competent counsel. Where a case has a lot of public notoriety it may be hard to plea bargain because a plea can give the appearance of not guilty. (plus you don’t want to deny the public the right to know if actually guilty.Defendant must know what they are pleading guilty to.Defendant must know what they are giving up in order to plead guilty. changes in the law do not invalidate pleas. The statute was invalidated and the defendant appealed his plea. .“Compromise better than conflict. .1022: Yates who drowned her children could not assert Jackson if the jury recommended the death penalty because Yates involved a plea and Jackson involved a statute.” Note 3 p.

Furthermore.“To punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort. NY p.Dissent would eliminate the ability for vindictiveness by making the prosecutors show all charges to the defendant and attorney. plea only has to be knowing and intelligent. it may be harder for the defendant to talk to the Judge than his own attorney. . .Supreme Court held that plea promises must be fulfilled and there is no harmless error because no way to tell what effect the recommendation had on Judge.” .Defendant objected but after discussions with the Judge it became clear that the recommendation had no effect and the judge would have given max anyway.1042: . . he would not have pleaded guilty and would have insisted on going to trial.’ But in the ‘give-and-take’ of plea bargaining.Due process was most likely the constitutional issue because the defendant was denied the benefit of his bargain and was unknowing. BREAKING THE DEAL: *Santobello v. The judge does not have to accept every guilty plea and a criminal defendant doesn’t have a constitutional right to have their plea accepted. A new prosecutor was assigned to the case and he recommended a max sentence. a broken deal was not a problem because the defendant accepted a later deal. o In Mabry. . Note 4 p. the defense attorney should do the questioning not the Judge .Can there be ineffective assistance of counsel in the plea stage? YES .to control the communication of the facts and prevent the defendant from saying something he will regret. No constitutional requirement for factual basis.Defendant agreed to plea bargain in which prosecutor would make no sentence recommendation.Coercion does not equal vindictiveness. or hurt the defendant in another case. Hayes p.Issue: Can the prosecutor threaten to bring more charges to coerce the defendant into taking the deal? . will harm another defendant. .In order to satisfy the prejudice requirement of ineffective assistance of counsel for a plea bargain. .Factual basis for the plea is given under oath therefore. The 6th circuit ended up reversing on Blackledge grounds.1033: not all states allow nolo contendere pleas including and there still must be a factual basis MAKING AND BREAKING DEALS: 1034-54 *Bordenkircher v. and for an Agent of the State to pursue a course of action whose objective is to penalize a person’s reliance on his legal rights is ‘patently unconstitutional. Purpose of Bordenkircher and Blackledge is to prevent vindictiveness by the prosecutor. . the defendant must show that there is a reasonable probability that but for counsel’s errors. . Supreme Court held that Blackledge didn’t apply.1034: .State Appeals said it was fine. .Remanded with 2 options: re-sentence with new Judge or allow defendant to withdraw the plea. there is no such element of punishment or retaliation so long as the accused is free to accept or reject the prosecution’s offer.

and cooperativeness.The guilty plea cannot be coerced and since it is a waiver of trial. the 2nd circuit felt the lies undermined the defendant’s credibility and made his cooperation useless. . The sentence reduction was contingent upon the prosecutor’s assessment of defendant’s truthfulness. Judge found that he was cooperative and it was warranted. completeness.Cont.In debriefing the defendant lied about kickbacks but later admitted it and corrected it.1060: conditional pleas pursuant to Fed Rule of Crim Pro 11(b) can be had to preserve appellate review of certain pretrial motions and the defendant may withdraw the plea if successful on the appeal. Brechner p. Note: When client lies you should have him admit it on the stand to avoid the gotcha moment. Note 3 p. PROCEDURAL EFFECT OF A GUILTY PLEA: 1055-60 *McMann v.1049: .Whether a valid guilty plea can be impeached is a collateral matter by assertions of proof that the plea was motivated by a prior coerced confession. .1055: . The prosecutor did not offer up the sentence reduction at sentencing and the defendant objected. it is also a waiver of the right to contest admissibility of evidence. . accuracy. Richardson p. *US v. .On appeal.Defendant offered up info in exchange for a sentence reduction.

cause: something that would render the juror unable to serve (i. .1062: right to trial by jury is to prevent oppression by the government. bias) 2. . . [if only 6 jurors than they must be unanimous] o Burch v.D must show a systematic exclusion of a distinctive group.1075: .A petty offense (punishable by jail of 6 months or less) do not qualify for trial by jury. .Federal cases must have unanimous verdicts but in state that is not the case.Jury nullification allows a jury to afford higher justice by refusing to enforce harsh laws . Voire Dire used to make sure the jury is actually impartial. Proving Unfair Cross-section: .e. . . RIGHT TO IMPARTIAL JURY and VOIRE DIRE: 1061-1102 *Taylor v.A distinctive group is (1) group defined and limited by some factor (like race or sex) (2) a group with a common thread or basic similarity in attiture. . Georgia states that 5 people is too small a jury. . peremptory: exclude a juror because attorney doesn’t want them on jury . .Jury trial is often waived where the defendant has a mental health problem and they are at issue.States don’t have to require 12 people to make up a Jury but shouldn’t have less than 6.State must be 9-3 or better.Women cannot be excluded from the jury pool because it is not a representative cross-section. Rationale: Because if defendant forced to have jury he has at least got what was guaranteed by the constitution. General Policies: . biased. Challenges: 1. Louisiana a 5-1 verdict is unconstitutional with 6 jurors must be unanimous. *Farretta: 6th amendment guarantees right to represent oneself but where defendant waives jury the prosecution must consent.Sometimes where the issues are very technical or facts are really disturbing is a reason to waive a jury.Not an equal protection case it’s a 6th amendment case. or experience runs through the group and (3) a community of interests among members of the group such that the group’s interest cannot be adequately represented if the group is excluded fron the jury selection process. .THE RIGHT TO AN IMPARTIAL JURY: 1061-82 *Duncan v. Size of Jury and Verdict: .Court says women have different sensibilities than men therefore without women on the jury not a fair representation of the community.Ballew v.jurors can ask questions of witnesses Defendant can waive a jury trial with approval of court and consent of the government. Lousiana p. ideas.Many jurors feel mental health is a poor excuse. Louisiana p.societal interest in jury trials because the people’s interest in the trial is upheld to allow them to prevent the arbitrary use of the judicial system . or eccentric judge. protection from an overzealous prosecutor and the compliant.

these jurors are called Witherspoon excludables (they are not a distinct class).Different from Ham because defendant in Ham was a civil rights activist whereas Rostino wasn’t a race based case so the questions not necessary. . Newton p. Salamone p. . .1083: Case about drug possession where the defendant was black civil rights activist.1089: “it is not required that the jurors be totally ignorant of the facts and issues involved.In reverse Witherspoon scenario where juror would vote for death regardless. Witt: challenges for cause in a capital case should be treated no differently than non-capital cases.RACISM IN JURY SELECTION *Ham v. Intrusive Voir Dire: Some questions may embarrass the jurors of the venir VOIRE DIRE IN A HIGHLY CHARGED CRINIMAL PROSECUTION *People v. It is sufficient if the juror can lay aside his impression or opinion and render a verdict on the evidence presented in court.Attorney was asking the jurors questions regarding racism.Where crime is interracial.Court therefore held that loss of peremptory was not a constitutional issue. . Mississippi an error in dismissing a Juror reverses the death penalty but not the guilty determination. . defendant can request that the jurors be questioned about race because it is the Jury who decides the penalty in capital cases therefore there is a need to uncover racial bias. The Supreme Court upheld the questions had to be asked. . Ross . . *Turner v. SC p.” *US v. Witherspoon: If juror is so opposed to death penalty they would not impose regardless the verdict. than they can be excluded for cause. since juror was dismissed the jury was impartial and that is the real issue.Court holds that membership in the NRA should not exclude those jurors in a case involving gun laws.Supreme Court held that a race based question didn’t have to be asked. Murray: Capital Case . *Gray v.1094: Jurors were asked about NRA membership. could be excluded for cause but didn’t matter because defendant used a peremptory. 2 types of bias: actual and implied Wainright v.Judge didn’t want them to be asked. *Rostino v.

Prima facie case of race discrimination made o Step one is satisfied by producing evidence sufficient to permit the trial judge to draw and inference that discrimination has occurred.Batson applies to gender. .striking all people who speak a certain language may be pretext for racial discrimination . Batson cases are either won at the trail level or not at all (a few cases aside).Court remanded to either pick new jury or to reverse the peremptories and sit that jury.Batson case opposed to Taylor case? . Doesn’t take much to bring a Batson claims and almost all get to stage 3. even if not factually backed) . Notes: . Kentucky p. court decides if race discrimination was in fact proven.Defendant was a black man and the Prosecutor used his peremptories to excuse all the blacks from the jury.If explanation is tendered.fair cross-section applies to jury pool not to actual jury . . .no standing requirement for a Batson challenge . however stage 3 relies upon trial court’s measurement of prosecutor’s credibility and this is a fact issue given great deference upon appeal.Miller-El cases only post Batson cases decided for the defendant. Batson 3 Step Process: . .Supreme Court held that intentionally striking jurors based upon race is unconstitutional and it must be proved by defendant. must show race neutral explanation (of any sort. . Defendant was denied a new jury. Consequently.Burden shifts.1104: . Prosecutor then has a chance to provide neutral reasoning for the dismissals other than race. Batson applies to the actions of the defense counsel as well as the prosecution.PEREMPTORY CHALLENGES AND BATSON – 1102-1125 *Batson v.

1127: . This was found to be improper because guilt and sentencing are separate stages. . . . .Juror was dismissed and Court had to figure out if nullification was an appropriate reason.However Jury no longer informed of its right to nullify. How do we do this and still protect the deliberation process and its secrecy? Notes: . Dougherty p.1126: Jury has an inherent power to disregard evidence and acquit if conscious provides. . *US v.Judge wanted to inform the jury of the potential lengthy sentence behind the crime (to be issued against a young man) the underlying intent was to try for nullification. o difficult to separate nullification from bad or ignorant behavior.JURY NULLIFICATION: 1126-41 *US v. if the juror is behaving badly but still deciding on the weight of the evidence then he can’t be dismissed.Court has the power to remove a juror under 23(b).However.Power not right to nullify do we acknowledge that the power exists? No. . Thomas p.Defense counsel cannot ask the jury to nullify because as officer of the court you are asking the jurors to violate their oath.

She then changed the story to say only raped by the defendant.Face-to-face confrontation was not necessary also because the jury had the ability to analyze the testimony and witnesses demeanor. 1157-8: same as Mattox rule but State wanted to introduce the testimony. *Olden v.1153: White victim allegedly raped by a black defendant and another person which was corroborated by a black person whom she was living. Craig p.This violated the right to confrontation and was not harmless error. Court found that it was OK.Court held this was ok because the defendant had the right to observe the proceedings and the defense attorney would have right to cross-examination. . *Crawford v. .CONFRONTATION CLAUSE: 1141-1157 *MD v. *Giles p. Washington p. *Davis: reporting incident for help is not considered testimonial (i. Roberts Rule p. *Ohio v.1163: Court reverses Roberts dicta which dealt with the indicia of reliability thereby divorcing confrontation issues from reliability issues. .1141: Can a child testify outside the defendant’s presence to prevent emotional disturbance or a frozen witness? .Both the witness and the victim testified at trial and the Judge denied cross-examination about their relationship. call to 911) *Hammond: where a victim is interviewed by police that is testimonial.e.1157: Defendant can introduce testimony of dead witness from a previous trial where witness was cross-examined by a person with a similar or identical interest. (this violates the confrontation clause because it is testimonial) . Court says that confrontation is merely a rule of procedure to be used to guarantee cross-examination. Kentucky p.14 of Supplement: Dying declarations are admissible as is forfeiture by wrongdoing where the wrongdoing designed to prevent the witness from testifying. Rape shield statutes prevents examination of the victims past sexual experiences HEARSAY AND CONFRONTATION: *Mattox Rule p. .

1191: pronouns can sometimes be used to satisfy the redaction RIGHT TO COMPULSORY PROCESS: 1191-1203 Obtaining Witness In Your Favor: *Washington v. *Taylor v. no chance for cross. in order to introduce a confession it must not suggest another party to the crime (merely erasing the co-defendant’s name is ineffective). *Cruz v. Note 4 p. NY p. .1191: defendants barred from calling co-defendants as witnesses because they are expected to be biased. *Gray v. MD p. Burr p. • Judge did a credibility determination on the witnesss before barring them from testifying (credibility is a jury decision).Therefore.1194: Supreme Court upholds the right of the Judge to bar witnesses where the defendant waited to call the witnesses until the 11th hour as a tactic in violation of the discovery rule. *US v.Court says redactions come close to being ineffective due to the facts and in reality no redaction has taken place thereby denied by Bruton/Cruz.1178: Supreme Court holds that a confession is barred as evidence against a co-defendant in a case called Bruton there.-In Cruz however both defendants confessed and the confessions interlocked it doesn’t matter because they will not be able to be separated by the jury so inadmissible. Texas p. Supreme Court held that this was a violation of the 6th amendment because it denied compulsory process and the justification was insufficient. allowing these games would hurt the whole justice system. .1193: compulsory relates to documents as well as witnesses. • Court said that misconduct implicates the whole fairness of the process which goes beyond tactical issues. .RIGHT TO HAVE CO-DEFENDANT’S CONFESSION EXCLUDED (BRUTON): 1177-91 Bruton: Incriminating confessions of co-defendant violate confrontation clause and are inadmissible. Illinois p. .1183: deals with redaction as a way to introduce a confession and satisfy Bruton. Note 3 p.1191: the redaction changed the meaning of the confession so it violates the rights of the defendant.

DEFENDANT’S RIGHT TO TESTIFY: 1203-1213 *rock v. Ark: Hypnosis Case • Supreme Court rejected a decision to deny any testimony by the defendant that had been hypnotically refreshed Rationale behind rule was that no way to know if actual recollection or was suggested during the hypnosis). Witness Sequestration: can be used to prevent the witnesses from becoming biased by the other witnesses’ testimony or from being influenced by it. *Griffin v. Kentucky: defendants have a right to an instruction that the jury should make no inferences from failure to testify. • Dissent felt that the statements did not compel the defendant to testify and the limiting instruction was sufficient and beneficial to his case because it instructed the jury not to speculate on the defendant’s lack of testimony (jury would have noticed on their own). . • Supreme Court said that these types of statements violate the 5th amendment by allowing the jury to use not testifying as evidence. • The Judge instructed the Jury that not testifying on own behalf did not equate to being guilty. (what if defendant doesn’t want this instruction?) • *Lakeside: held that instruction doesn’t violate self-incrimination clause.1205: Prosecutor commented to the jury about the defendant’s non-testimony. California p. which is like a penalty for not testifying. • The Supreme Court felt it infringed upon the defendant’s right to testify on his own behalf. *Carter v.

1127: the earlier case with the juror who was disruptive and refused to convict no matter what. (Even though the juror looked at the newspaper.court will presume prejudice. Juror had applied for a job at the DA’s office.” JURY TAMPERING *Remmer. any private communication.“in a criminal case. however the judge should interview the juror about what they saw and what they told the other jurors. Inconsistent Verdict Theory: where jury reaches verdict but an varying grounds this is ok so long as the received proper jury instructions . • • jury coin-flipped to decide whether to charge murder or manslaughter. before dismissing the juror. Court found that this did not influence his thinking on the case and the verdict was ok. the verdict came back as murder and the judge declared a mistrial.1214: W • When a jury is deadlocked the judge can give an instruction: “if much the larger number were for conviction.) PREJUDICED JUROR CASES: *US v.” JURY MISCONDUCT *People v. a dissenting juror should consider whether his doubt was a reasonable one… If. Thomas p. this was considered misconduct. the majority were for acquittal. the minority ought to ask themselves whether they might reasonably doubt the correctness of a judgment which was not concurred by the majority. Halloway (CA). if not made in pursuance of known rules of the court and the instructions and directions of the court made during the trial with full knowledge of the parties.JURY VERDICTS Allen Charge p. he may have been checking baseball scores. upon the other hand. In cases where juror is disruptive the judge can dismiss when he refuses to be impartial. with a juror during a trial about the presumptively prejudicial. NOTES: • it is hard to challenge a jury verdict because not supposed to see deliberations • Polling the Jury to make sure the verdict is valid cannot impeach the verdict unless outsie influence has affected the decision. or tampering directly or indirectly. contact.

1227: • Purpose of guidelines was based on retribution. (3) district court improperly based three-level downward departure in part on fact that police officers would lose their jobs. NOT IN SYLLABUS!! DOWNWARD ADJUSTMENTS ETC *US v. (4) district court improperly based such threelevel departure in part on its belief that police officers posed low risk of recidivism. *Williams v. and (5) district court acted within its discretion in considering police officers' high susceptibility to abuse in prison and fact that they were subjected to successive state and federal prosecutions as factors upon which to base downward departure. prosecutor’s can choose what charges to bring to get the punishment they feel is necessary can also affect sentence thru the plea.] Notes: • Disparity is a matter of opinion. • Real offense issue. US p. • there was no parole and guidelines were mandatory with guarded discretion to grant upward or downward departures. because under the sentencing guidelines lesser crimes could be punished harsher than heinous crimes. US p. [this system prevents discrepancies or disparity between sentencing of similar crimes. deterrence and keeping them off the street (not rehabilitation).1258: due process is not violated when the judge gets additional out of court info to assist him in the sentencing of the death penalty.1245: 1) district court's decision to depart downward from applicable sentencing range under Sentencing Guidelines was to be reviewed under abuse of discretion standard. . 2 types of downward adjustments: (1) when defendant’s participation in the crime was minimal (2) when defendant clearly demonstrates acceptance of responsibility for his offense *Koon v.SENTENCING: 1220-1240. (2) district court acted within its discretion in departing downward five levels based on finding that suspect's misconduct contributed significantly to provoking officers' offense behavior. • Guidelines subject to gamesmanship. Dunnigan p.1240: enhancing sentence for perjury at trial does not undermine the defendant’s right to testify. NY p.court can consider what defendant really did not just what was plead to. 1269-1305 *Mistretta v.

APPRENDI AND FORMALIZING SENTENCING *Apprendi v. (this is because the extra sentence is a new accusation which is afforded the right to be heard by the jury. Defendant appealed. *Blakely v. Defendant appealed.involved guilty plea but after appeal the case goes to trial.1286: trial court's sentencing of defendant to more than three years above the 53month statutory maximum of the standard range for his offense. Appellate Division affirmed. affirmed. violated defendant's Sixth Amendment right to trial by jury.v Pearce p. Law Division. Smith. US • There must be vindictiveness (punishment for exercising his right) • A presumption arises and the government must overcome it. NJ p. Cumberland County. o (2) state hate crime statute which authorized increase in maximum prison sentence based on judge's finding by preponderance of evidence that defendant acted with purpose to intimidate victim based on particular characteristics of victim violated due process clause. o (Judge can say at trial that there was a greater record to support the harsher sentence whereas as the guilty plea all facts come from the defendant so the crime will not seem as bad) Note: In overcoming the presumption the argument must be based upon objective facts. • However a judge isn’t barred from giving a harsher sentence in a second trial so long as new facts warrant the harsher sentence and the judge must put those reasons on the record. McCullough-different sentencing judges so no presumption • *Alabama v. • US SC held that: o (1) other than fact of prior conviction. Washington p. of possession of firearm for unlawful purpose and unlawful possession of prohibited weapon • Defendant was sentenced to extended term under New Jersey's hate crime statute. on basis of sentencing judge's finding that defendant acted with deliberate cruelty. any fact that increases penalty for crime beyond prescribed statutory maximum must be submitted to jury and proved beyond reasonable doubt. • *TX v.1270: Defendant was convicted pursuant to guilty plea in the Superior Court.1305: • Judge who punishes a defendant for exercising appeal rights. The New Jersey Supreme Court. . • “reasonable likelihood” that the increased sentence was vindictive No Presumption Cases: • *Chaffin-no vindictiveness because new jury without knowledge of first jury and no personal stake in the prior conviction.) JUDICIAL VINDICTIVENESS *NC . *Wasman v. violates due process. The Superior Court. Court felt there was no vindictiveness because trial judge had no personal stake.

*Whalen-cant impose extra sentencing because rape is lesser included offense of the felony murder and legislature didn’t intend multiple punishments. *Gore v. . US p.Lesser included offense test: does each offense require proof of element different from the other? o If so. Court found that this was ok Note: Blockburger works ok with lesser included offenses because of merger. . not a lesser included offense. *Brown v. . • US Supreme Court found that no double jeopardy where only 1 trial and where the legislature is clear it wants 2 punishments.He was found guilty for both in trials in separate jurisdictions.e. 1973. *Blockburger v.Question of whether this was one or more crimes. • Mizz Supreme Court did a Blockburger analysis found double jeopardy. no matter if the lesser crime is prosecuted first. .DOUBLE JEOPARDY: 1310-1331 Fifth Amendment protects defendants from being tried twice for the same crime. o Here there are different elements so different offenses. Must look to statute as written by the legislature. What if the person is acquitted for GTA but then charged for joyriding for the same occurrence? Does the greater offense charge for the lesser as well? Unit of prosecution issue.Supreme Court reversed holding that they were the same crime and cant be tried twice for the same crime. Ohio p. Rule of Lenity: Court must construe criminal statutes narrowly for benefit of defendant and should not convict defendant on more offenses than the legislature authorized.Court found them to be separate acts because different days even though joy riding is a separate included offense. US. defendant ordered the drugs on day 1 during a delivery and then the 2nd set delivered the next day. Hunter p. if multiple victims is it one offense or multiple offenses? Must look at the crime statutes and compare them to the crime actually committed. 29.1318: Defendant stole a car on Nov. . Same offense issue. 1313: multiple drug sales on different days. 1973 found joy riding in another jurisdiction on Dec 8. 1325: 2 similar crime statutes but if convicted of both crimes they run concurrent. assault and then victim dies after trial] *Missouri v. Blockburger struggles where offenses are different and the crimes fo not seem that different because differences have nothing to do with actual crime (such as time of the offense). . (continuous transaction?) . Can get confusing because legislative intent is not always clear.defendant sentenced for three counts consecutively arising from one drug sale. o [this doesn’t apply where the greater offense has not yet arisen at the time of the trial for the lesser crime i.Court held that there were separate criminal impulses so it is 2 transactions.

he was then tried again for another victim and convicted.*Green v. so different elements) Implied Acquittals: . and the appellate court reversed because there was no authority to give that direction.If was that defendant was not a robber therefore. .FORMER ACQUITTAL/COLLATERAL ESTOPPEL: 1331-1353 *Fong Foo v.(Blockburger didn’t apply because there was more than one victim. Note: Prosecutor in federal court cannot appeal acquittals. *Ashe v.1331: Judge directed jury to acquit. o Any acquittal triggers double jeopardy. Court found therefore still in jeopardy.Supreme Court had differing views of Sanford because there is a 7 day period for post trial motions. . Swenson p. • Supreme Court then upheld acquittal upon double jeopardy grounds. • If no resolution of facts than can retry the case. (ex: defendant bribed judge) Note case . Court said estoppel is not applied hyper-technically in criminal cases and it should be decided what Jury would had to have held to acquit here . Some states allow appeals of acquittals on legal issues for precedent purposes only.. . Sanford-defendant asked on 2nd trial after mistrial to dismiss the indictment because the evidence at 1st trial was insufficient. Scott. . State appealed. Martin Linen Supply Co. • Court agreed and dismissed.Question arose as to whether the second case was collaterally estopped. would be retrying for same crime and cannot retry.Defendant tried 1st time for one victim and acquitted. *US v.Judge dismissed the case.1335: Robbery of a poker game. Prosecutor retried because not acquitted.*US v. it doesn’t matter the reasoning if it is for the defendant it is considered an acquittal for double jeopardy reasons. Supreme Court reversed because he was not in Jeopardy because the 2nd case hadn’t started yet. *US v. US p. o Supreme Court implied acquittal because it was a lesser offense. US.defendant charged with 1st degree murder and convicted of 2nd degree.

.When does double jeopardy attach? .Defendant says why should they get to retry where they messed up the indictment anyway.*Bartkus v. or was indifferent to the danger of.Each state is also considered a different sovereignty o State and municipal courts are still same soverign. Mistrial Test: “manifest necessity” or “ends of public justice test” *Illinois v.1348: defendant can’t use an acquittal or conviction from one to bar a trial in another sovereignty (can’t use a state verdict to block a federal case) *Abbate.1341: Prosecutor’s key witness not available so he asks to dismiss until witness can be found. p.In a Jury trial it attaches when the Jury is sworn in because 1. US p.In a bench trial when 1st witness is sworn in. Fed wont re-prosecute unless prior proceeding left fed interests demonstrably unvindicated. therefore if the case is dismissed (and double jeopardy attached at 1st witness) the prosecutor would know the defendant’s strategy.] IMPORTANT! . .[If there is a situation where statute of limitation has run than whether it is a mistrial or a dismissal makes no difference because prosecutor can’t refile.MISTRIAL DOCTRINE *Downum v. .Supreme Court finds manifest necessity for mistrial because if convicted would be overturned and retried anyway.1352 . Defendant was then convicted. . . in most bench trials no opening statements 2. Somerville bad indictment.Court likens this to a hung jury and says retrial is not barred however if stoppage interfered with defendant’s ability to get acquittal it should be treated as an acquittal. .Judge does dismiss and restarts trial. Illinois p. (Court seems to ignore Downum Principle of best chance at acquittal) Defense Motion for Mistrial will never create a jeopardy bar except where prosecution intended to goad defendant into asking for a mistrial (this is a really tough standard because must get in the mind of the prosecutor) Oregon standard is probably better “whether prosecutor intended. a mistrial” DUAL SOVERIGNTY . if it went to trial it would be reversed so mistrial needed to prevent implied acquittal if dismissed. In jury trial must be at swearing of jury because prosecution will hear defendant’s opening statement.fed can prosecute same conduct that underlies a state verdict .

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