CRIMINAL PROCEDURE ADJ

Prosecutorial Discretion
 RULE: Generally, prosecutors have vast discretion as to whether and how to charge
defendants. There is very little court or other oversight. Even seemingly mandatory language
in a statute does not necessarily remove such discretion.
 Inmates of Attica Correctional Facility v. Rockefeller (2d Cir. 1973) – Prisoners killed
when prison officials put down an inmate uprising at Attica. s (civil case) claim that
investigator appointed by governor is not fully investigating police misconduct or
abuse. s seek mandamus ordering active independent investigation. Court held
that “substitution of a court’s decision to compel prosecution for the U.S. Attorney’s
decision not to prosecute, even upon an abuse of discretion standard of review and
even if limited to directing that a prosecution be undertaken in good faith, would be
unwise.” Separation of powers limits court’s ability to dictate policy to executive.
Mandatory language in statute does not obviate existence of prosecutorial discretion.

 Sub-Rule: Prosecutor’s charging decision lies entirely within discretion,

even where charge carrying lesser penalty is available.
 United States v. Batchelder (1979) – Two possible laws could apply to ’s
conduct and he was charged with the one carrying a harsher penalty. Court
held that charging decision lies entirely within prosecutorial discretion unless
there is some constitutional violation (e.g. equal protection or due process).
Neither alleged here.
 Sub-Rule: Prosecutor is free to condition dropping or reducing charges on ’s
compliance with some external consideration.
 RULE: Checks on prosecutorial discretion include desuetude, abuse of discretion, equal
protection issues, due process issues, and a ban on vindictive prosecutions.
 Sub-Rule: Common law principle of desuetude means that a statute that is
unenforced for a long period of time becomes unenforceable.
 Sub-Rule: A prosecutor abuses his discretion where a statute requires prosecutors to
require certain factors before deciding to prosecute, and the prosecutor does not
consider those mandatory factors. In the absence of such a statute, abuse is nearly
impossible to prove.
 Sub-Rule: Prosecutor’s exercise of discretion has violated the equal protection clause
where there is a discriminatory purpose and effect. The  must also show that similarly
situated individuals of a different race were not prosecuted.
 Sub-Rule: Prosecutor not allowed to vindictively prosecute defendant. Such
vindictiveness is presumed where a court increases a sentence after appeal (North
Carolina v. Pearce) or where a prosecutor increases charges on retrial (Blackledge v.
Perry).
 United States v. Goodwin (1982) –Prosecutor upped charges to felonies after 
demanded jury trial.  claimed this was vindictive prosecution. Court held
that there is no presumption of vindictiveness where decision is made pretrial
and  had failed to show any actual evidence of vindictiveness. Vindictiveness
will be presumed in cases where a court increases a sentence after appeal
 (North Carolina v. Pearce) or where a prosecutor increases charges on retrial
(Blackledge v. Perry).
 RULE: Various organizations have proposed models to guide exercise of prosecutorial
discretion, but none have been adopted in binding way.
 Sub-Rule: Proposed considerations include, doubt of accused’s guilt, value of
proceedings in preventing future harm, cost of prosecution, and the likelihood of
prosecution in another jurisdiction

The Complaint
 RULE: The complaint is (1) a written statement, (2) made under oath by complainant (who
can be essentially anybody), (3) containing the essential facts constituting the offense. It must
be made under oath before a magistrate judge. Fed. R. Crim. P. 3.
 Sub-Rule: A complaint fails where it does not allege a factual basis for its legal
conclusions.
 Sub-Rule: For complaint to also serve as arrest warrant, it must also meet the
Fourth Amendment’s probable cause requirements

Initial Appearance
 RULE: Initial appearance must be held promptly after defendant is arrested.
 Sub-Rule: At the initial hearing, the court will provide information about the
charges to the , appoint counsel (if needed), schedule further proceedings, and
possibly make a release decision.
 Sub-Rule: If a  is held without initial appearance in violation of Fed. R. Crim. P. 5,
any subsequent confession may be excluded. McNabb-Mallory Cases. Congress has
created a six-hour safe harbor provision for voluntary confessions. 18 USC § 3501.
 RULE: Where defendant has been arrested prior to warrant being issued, defendant must be
brought before a magistrate to establish probable cause within 48 hours for delay to be
presumed reasonable.

Custody and Release Pending Trial

 RULE: A  can be held prior to trial to (1) secure the ’s appearance in court, (2) prevent the
destruction of evidence, or (3) prevent future harm.
 RULE: The Bail Reform Act of 1984 broadened the instances in which court could detain
defendants prior to trial. Protecting community safety is now a factor to be considered.
 Stack v. Boyle (1951) – Bail must be fixed for purpose of assuring presence of  at
trial.
 RULE: A judge shall order some form of release unless he determines that release will not
reasonably secure appearance or will endanger safety of community.
 Sub-Rule: A judge may not impose a financial condition that results in the pretrial
detention of a person where detention is not warranted. § 3142(c)(2).
 Sub-Rule: There is a rebuttable presumption to detain  where defendant was
convicted of crime committed while on bail or probation and within the last five years
or where the penalty for charged crime is imprisonment of longer than 10 years. §
3142(e)
  Court held that government has a strong interest in securing s’ appearance at trials,
which outweighs individual’s liberty interests

 RULE: Bail can be granted for post-conviction appeal where defendant shows by clear and
convincing evidence (1) that  is not likely to flee or pose danger to community, (2) that
appeal is not for purpose of delay, (3) that appeal raises substantial question of law or fact,
and (4) that if the substantial question were resolved in ’s favor, it would likely result in
reversal or order for new trial. § 3143.

Preliminary Hearing
 RULE: A  is entitled to a preliminary hearing unless: (1)  waives, (2)  indicted,
(3)  files information under charging  with felony

 RULE: A preliminary hearing is a semi-adversarial procedure in which the prosecution may

call a few witnesses to demonstrate to the court that it has probable cause to proceed with
case. This generally follows the initial hearing, but the two may be combined.
 Sub-Rule: Court may dismiss case at this stage if when viewing evidence in light
most favorable to the  and drawing all inferences in ’s favor, there was no probable
cause there is no probable cause to believe that  committed a crime.
 People v. Ayala (CO 1989) – Judge dismissed case at preliminary hearing for
lack of probable cause. s say they bought stripped down car extra cheap.
Arrested for theft by receiving when car turned out to be stolen. Court held
that even viewing evidence in light most favorable to the  and drawing all
inferences in ’s favor, there was no probable cause because no evidence
indicated that s knew that car was stolen. Reviewed under abuse of discretion
standard.
 RULE: Defendant is entitled to representation by counsel at preliminary hearing.
 Coleman v. Alabama (1970) - s say that their rights were violated because they were
denied counsel at preliminary hearing. s later convicted at trial. Court held that s
are entitled to counsel at preliminary hearing because that hearing is a “critical stage”
in the judicial process. Presence of lawyer would (1) expose weaknesses in  case, (2)
help create impeachment material for trial, (3) more effectively discover extent of ’s
evidence, and (4) make better arguments for bail or diversion program.
 NOTE: Preliminary hearing may be useful for: Screening, Discovery, Preserve
testimony, Test or prepare witness, Facilitate later impeachment, Solidify
identification, Send message to witness, Reality therapy for , Affect plea bargaining,
Affect bail decision, and Diversion

Grand Jury
 RULE: Grand juries review cases presented by prosecution to determine whether there is
probable cause to proceed to trial. Where the grand jury finds probable cause, it returns an
indictment.
 Sub-Rule: In federal system, grand juries consist of 16-23 members, of whom at least
12 must concur to issue an indictment.
 RULE: Grand jury proceedings are secret. Only government attorneys, witness being
questioned, interpreters, and court reporter can be present while grand jury in session. No
person other than jurors and interpreter (if needed) can be present during deliberations.
Afterwards, all parties except witnesses are bound to secrecy of proceedings. Fed. R. Crim. P. 6.
 RULE: Prosecutor dominates grand jury proceedings and is responsible for presenting
evidence and explaining the law.
 Sub-Rule: Prosecutor is not obligated to disclose exculpatory material to the grand
jury.
 United States v. Williams (1992) -  indicted for making false statements to
federally insured financial institution. Sought to dismiss indictment where 
did not disclose exculpatory material. Court held that because GJ is an
accusatory, not adjudicative, body  has no constitutional duty to disclose
exculpatory material. No sense in requiring that step, but not allow  to
present own defense, in which case you basically have a pre-trial trial. Further,
court’s supervisory role does not extend to ’s conduct before the GJ
 RULE: Normal evidentiary rules not applicable in grand jury proceedings. Provided
indictment is facially valid there is no strict evidentiary standard.
 Costello v. United States (1956) -  indicted by GJ based entirely on hearsay evidence.
Court held that the Fifth Amendment requires no more than a facially valid
indictment. There is no evidentiary standard.
 RULE: Grand juries have the power to subpoena witnesses and documents.
 Sub-Rule: Those subpoenaed pretty much have to comply unless the court
“determines that there is no reasonable possibility that the category of materials the
Government seeks will produce information relevant to the general subject of the
grand jury’s investigation.”
 Blair v. United States (1919) – Witness pretty much has to obey subpoena and
answer whatever GJ asks because investigation is an open-ended process.
Subpoenaed witness can’t challenge jurisdiction.
 Unites States v. R. Enterprises, Inc. (1991) -  refused to produce records
claiming they were irrelevant and production would violate First Amendment.
Court held that motion to quash a subpoena “must be denied unless the
district court determines that there is no reasonable possibility that the
category of materials the Government seeks will produce information relevant
to the general subject of the grand jury’s investigation.” Presumption of GJ
legitimacy.
 Sub-Sub-Rule: The Fifth Amendment does still apply, meaning that witnesses
cannot be compelled to offer testimony against themselves.
 RULE: Valid indictment must be plain, concise, and definite written statement of the
essential facts constituting the offense charged. It must cite statute, rule, regulation, or other
provision of law alleged to have been violated. Fed. R. Crim. P. 7. In other words, the indictment
must fairly inform the defendant of the charges against which he must defend himself.
 Russell v. United States (1962) -  filed motion to dismiss conviction for refusing to
answer pertinent questions before Congress where indictment failed to list the topics of
the hearing that  was supposed to testify about. Court held that in this case the
indictment must include the topic of the required testimony so that  will be informed
of what he has to meet and whether questions were pertinent to hearing topic.
 Sub-Rule: The court has the authority to amend indictment on matters of form (e.g.
correcting spelling of name, statute citation, etc.), but not substance. Substantive
amendments require returning to the grand jury.
 Sub-Rule:  may request a bill of particulars to gain more information about the
charges. This can be used to supplement the information in the indictment, but cannot
be used to cure a faulty indictment.
 RULE: Rule violations before the grand jury that do not affect substantial rights are deemed
harmless and do not merit dismissal.
 United States v. Mechanik (1986) – Two GJ witnesses testified at same time, in
violation of Rule 6.  moved to set aside conviction based on faulty indictment. Court
held that errors not affecting substantial rights are harmless. Fact that petit jury
found  guilty beyond a reasonable doubt “rendered harmless any conceivable error in
the charging decision.”

Joinder and Severance

 RULE: Multiple offenses can be joined into a single trial if they are of the same or similar
character, or are based on the same act or transaction, or are connected with or constitute
parts of a common scheme or plan. Fed. R. Crim. P. 8(a).
 United States v. Jawara (9th Cir. 2006) -  charged with variety of actions
surrounding immigration fraud. Court held that offenses improperly joined because
more than a facial similarity in subject matter is required. But there is no prejudice
from the misjoinder here because the charges were distinct enough to avoid jury
conflating/confusing issues.
 RULE: Multiple defendants can be joined in a single trial if they are alleged to have
participated in the same act or transaction, or in the same series of acts or transactions,
constituting an offense or offenses. Fed. R. Crim. P. 8(b).
 United States v. Satterfield (9th Cir. 1977) - s joined in trial for five bank robberies
even though they only committed two together. Court held that although MO’s were
similar (which might justify joinder), they were not similar enough and joinder
prejudiced  who had participated in only a few robberies.
 RULE: Court may order separate cases be tried together as though brought in a single
indictment or information if all offenses or s could have been joined in a single indictment or
information. Fed. R. Crim. P. 13.
 RULE: If joinder would prejudice  or government, court may order separate trials of counts,
sever the s’ trials, or provide any other relief that justice requires. Fed. R. Crim. P. 14(a)

Discovery, Disclosure, and Preservation

Disclosures
 RULE: Prosecution has affirmative obligation to provide  with material exculpatory
information and information that might reduce sentence.
  Brady v. Maryland (1963) – After being convicted,  learned that  had suppressed
exculpatory material. Court held that suppression by the  of evidence favorable to
an accused upon request violates due process where the evidence is material either to
guilt or to punishment, regardless of the good or bad faith of prosecutor. (pg 277)
 Sub-Rule: Brady obligations extend to information that could be used to impeach 
witnesses at trial.
 United States v. Bagley (1985) -  requested information from  about
government witnesses that could be used for impeachment. Government did
not disclose that witnesses received money from the government. Court held that
although Brady applies to information that could be used to impeach witnesses,
the right to fair trial was not infringed here because the information was not
materially essential. Reversal warranted where there is reasonable probability that
trial result would have been different had  made disclosure.
 Giglio v. United States (1972) – Court held that  must disclose information
that could help impeach a witness by showing that witness struck deal with .
 Sub-Rule: Materiality standard is defined in terms of cumulative effect of all suppressed
evidence, not each piece of evidence considered item-by-item.
 Kyles v. Whitley (1995) – Court held that materiality standard is defined in terms of
cumulative effect of all suppressed evidence, not the item considered item-by-item. Further,
Brady applies to both prosecution and police files. All material must be turned over, whether
known to the  or not
 RULE: Government must disclose to  the prior statements of government witnesses before
cross examination. Jencks v. Unites States (1957); 18 USC § 3500.
 Sub-Rule: Upon motion, party must produce witness’ previous statements related to
subject matter of the testimony to the other side. Fed. R. Crim. P. 26.2.
 RULE: In some cases, the  has the obligation to disclose his intent to introduce a particular
defense.
 Sub-Rule: Government may request notice that  intends to present alibi defense.
The  must provide the  with the specific places the  claims to have been and the
name and contact information of the alibi witnesses the  intends to call. If the
government plans to call rebuttal witnesses, it must provide the names and contact
information for those witnesses to the . Fed. R. Crim. P. 12.1
 Sub-Rule:  must notify  of intent to claim insanity. The court may order a mental
evaluation in that case, though the statements made during the examination cannot be
used as evidence except as they relate to ’s mental condition.
 Sub-Rule: Although discovery rules generally favor the  (because of Fifth
Amendment prohibitions against needing to bear witness against self), state laws
requiring disclosure of ’s intent to use an alibi defense are not unconstitutional.
 Williams v. Florida (1970) – FL law requires  to notify  of intent to use alibi
defense and give details.  objected, but was forced to do so. Convicted. Court
held that there was no 5A violation here because  did not have to provide
 defense.  conceded there was no objection to government taking the exact
same actions in the middle of the trial—timing does not create a violation.
Adversary system is not an end in itself—notice requirement helps aid pursuit
of truth.
Preservation
 RULE: The government’s failure to preserve evidence is not a due process violation unless
the state acted in bad faith.
 Arizona v. Youngblood (1988) -  accused of sexual assault. Sexual assault kit
performed but did not return useful evidence and the samples were not preserved for the
 to test them. At trial, the court gave the instruction that the jury could presume facts
against the state if they thought state had destroyed evidence.  convicted. Court held that
the failure to preserve evidence is not a due process violation unless the  shows that the
state acted in bad faith.
Discovery
 NOTE: Sources of discovery in criminal cases include: Bail hearing, Preliminary Hearing, Bill
of particulars, Notice (evidence, alibi, mental condition), Depositions, Suppression hearing,
Rule 16, Subpoena, Jencks/Brady/etc., and Inherent authority.
 RULE: Upon request,  must provide copy of ’s statements to government (oral or
written), ’s prior criminal record, certain documents and objects, certain reports of exams
and tests, and summary of expert testimony. Fed. R. Crim. P. 16(a)(1).
 Sub-Rule: Documents/objects must be turned over that are material to preparing
defense, that government intends to use in case-in-chief, or that was obtained from or
belongs to .
 RULE:  must turn over documents/objects, exams and tests, summary of expert testimony if
it requests disclose under 16(a). Fed. R. Crim. P. 16(b)(1).
 Sub-Rule:  must only turn over if it intends to use them at trial (as opposed to ,
which must turn over information if it is material to defense)—e.g.  is examined by 5
psychiatrists, only one says  insane,  must only turn over the one that it intends to
use at trial and not the other four (whereas the  would have to disclose that the other
four found against insanity because that would be material to defense).
 RULE: Government, at its discretion, may notify  that it intends to use particular evidence
at trial-- then has opportunity to file motion to suppress. Fed. R. Crim. P. 12(b)(4).
Government does not have to give notice and  does not have to respond. This is used rarely in
instances where admissibility of piece of evidence will greatly affect trial strategy and 
wants to get ruling in advance.
 RULE: Parties allowed to subpoena things to be produced at court before trial for parties to
inspect. Fed. R. Crim. P. 17.
 Sub-Rule: Parties cannot use Rule 17 as a pretrial fishing expedition, but must show
that material needed to avoid delay, that due diligence exercised, that request is in
good faith. United States v. Nixon (1974).
 RULE: Upon motion and to preserve testimony for trial, court can order deposition because
of exceptional circumstances and in the interests of justice. Fed. R. Crim. P. 15.  bears the
burden of showing that deposition will provide material exculpatory information.
 United States v. Esquivel (DDC 1990) -  wants to depose co- fugitives in Chile to
show that killing was ordered by Chilean government. Court held that  has made no
 showing beyond speculation that deposition will provide material exculpatory
information. Thus, the motion to depose witnesses is denied.
 RULE: Court also has inherent authority to order discovery.
 United States v. Carrigan (10th Cir. 1986) – Witnesses initially agreed to talk with 
lawyer, but then changed their minds, perhaps at the urging of the prosecutor. Court
ordered depositions. Court held that although ordering depositions of witnesses for
the opposing party is not authorized by the federal rules of criminal procedure, there
was no abuse of discretion when the court exercised its inherent authority to do so.
 RULE: When a party fails to comply with discovery requirements, the court can order that
party comply, grant a continuance, or prohibit the party from introducing the undisclosed
evidence. Fed. R. Crim. P. 16(d)(2)

Pleas
 RULE: Arraignment held in open court to ensure that  has a copy of the indictment or
information, read the charge to  and state the substance of the charge, and ask the  to enter
a plea. Fed. R. Crim. P. 10(a).
 Sub-Rule:  need not be present for arraignment for misdemeanor or where 
waives that right. Fed. R. Crim. P. 10(b).
 Sub-Rule: Sixth Amendment right to counsel applies at arraignments. Fellows v.
United States (2004).
 RULE: Most cases are resolved by plea bargaining.
 Different plea agreements include:
 charge agreement:  pleads to lesser charge and others are dropped
 recommendation agreement:  recommends a particular sentence
 specific sentence agreement:  pleads in exchange for specific sentence
 fact stipulation agreement: parties agree to pertinent facts and circumstances
that might affect sentence
 Range of plea options is limited only by creativity of lawyers. Just about everything is
on the table.
 Plea Bargaining Pros and Cons include: Administrative Convenience/Necessity, May
lead to inaccurate results, Potential disparity in sentences, Invisibility of process,
Encourages less than diligent preparation for trial, and s may overcharge to
strengthen bargaining position.
 Sub-Rule: Nothing illegal or coercive about plea bargaining even when capital
charges are on the table.
 Brady v. United States (1970) –  faced death penalty on kidnapping charge.
Changed plea to guilty after co-defendant pled guilty and agreed to testify. 
claimed his plea was involuntary because of pressure from statute and counsel.
Court held that fear of death penalty is not enough to render plea coerced
where it is otherwise made knowingly, intelligently, and voluntarily.
 Sub-Rule:  may threaten to add additional valid charges to indictment if  does
not accept plea deal without violating due process protections.
 Bordenkircher v. Hayes (1978) -  threatened to add additional charges to
indictment if  did not accept plea deal. Court held that where  makes
 consequences of refusing plea clear from the beginning, there is no due process
violation from increasing charges in response to failure to plead guilty.
Essentially the same result as if  had charged  with everything from the
beginning. Give and take of plea bargaining is different from punishment for
exercising constitutional rights.
 RULE: Generally, a  can plead guilty, not guilty, or nolo contendre. Fed. R. Crim. P. 11(a)(1).
If  fails to enter plea, court will enter plea of not guilty. Fed. R. Crim. P. 11(a)(4)
 RULE: When accepting plea, court must engage in colloquy directly with  to ensure that
plea is voluntary and that  understands the rights he is forgoing. Fed. R. Crim. P. 11(b).
 Sub-Rule: Court must ensure that  understands: (A) the government's right, in a
prosecution for perjury or false statement, to use against the defendant any statement
that the defendant gives under oath; (B) the right to plead not guilty, or having
already so pleaded, to persist in that plea; (C) the right to a jury trial; (D) the right to
be represented by counsel—and if necessary have the court appoint counsel—at trial
and at every other stage of the proceeding; (E) the right at trial to confront and cross-
examine adverse witnesses, to be protected from compelled self-incrimination, to
testify and present evidence, and to compel the attendance of witnesses; (F) the
defendant's waiver of these trial rights if the court accepts a plea of guilty or nolo
contendere; (G) the nature of each charge to which the defendant is pleading; (H) any
maximum possible penalty, including imprisonment, fine, and term of supervised
release; (I) any mandatory minimum penalty; (J) any applicable forfeiture; (K) the
court's authority to order restitution; (L) the court's obligation to impose a special
assessment; (M) in determining a sentence, the court's obligation to calculate the
applicable sentencing-guideline range and to consider that range, possible departures
under the Sentencing Guidelines, and other sentencing factors under 18 U.S.C.
§3553(a); and (N) the terms of any plea-agreement provision waiving the right to
appeal or to collaterally attack the sentence. Fed. R. Crim. P. 11(b)(1).
 RULE: A defendant may withdraw a plea of guilty or nolo contendere: (1) before the court
accepts the plea, for any reason or no reason; or (2) after the court accepts the plea, but
before it imposes sentence if: (A) the court rejects a plea agreement under 11(c)(5); or (B) the
defendant can show a fair and just reason for requesting the withdrawal. Fed. R. Crim. P.
11(d). After the court imposes sentence, the defendant may not withdraw a plea of guilty or
nolo contendere, and the plea may be set aside only on direct appeal or collateral attack. Fed.
R. Crim. P. 11(e).
 Sub-Rule:  also has power to withdraw plea offer before plea is entered.
 Mabry v. Johnson (1984) -  can withdraw plea offer, even after  has said he
will accept it, at any time before plea entered so long as it does not impair the
voluntariness or intelligence of the plea that finally is entered.
 RULE: Fed. R. Crim. P. 11(a)(2) allows  to enter conditional plea which allows him to appeal
if adverse determination occurs.
 RULE: When agreeing to plea,  can waive most rights (including right to appeal), but
cannot waive Sixth Amendment right to effective assistance of counsel.
 Jones v. United States (7th Cir. 1998) -  entered cooperation agreement which
waived appeal and habeas rights.  later claimed in habeas petition that he received
ineffective assistance of counsel during negotiation of agreement. Court held that
claim to ineffective assistance of counsel in connection with waiver agreement cannot
 be waived. Otherwise, there would be no way to tell whether agreement was actually
knowing and voluntary.
RULE: Defendant does not have to admit guilt when entering plea for sentence to be valid.
 North Carolina v. Alford (1970) -  counsel recommended  plea guilty to second
degree murder charge based on overwhelming evidence against him. At hearing,
witnesses presented summary version of facts.  claimed he had not committed the
crime, but was pleading guilty only to avoid possibility of death penalty. Court held that
admission of guilt is not a constitutional requisite before the court imposes a
criminal penalty. Plea was voluntary, as evidenced by rationality of accepting the plea
given the weight of evidence against him
 RULE: Strickland standard applies to defense counsel’s conduct during plea negotiations.
Thus,  must show deficient performance and prejudice.
 Hill v. Lockhart (1985) -  pled guilty but later claimed that his lawyer had not fully
informed him on the sentencing consequences of his plea (parole eligibility). Court
held that Strickland standard applies to guilty pleas and  can only show prejudice if
he shows a reasonable probability that, but for counsel’s errors, he would have pled not
guilty and insisted on going to trial.
 Laffler Case (2012) - Defense lawyer advised client not to accept plea deal-- refused
deal, was convicted, and received sentence 3.5x longer than deal. Court held that this
advice was so bad that it rose the level of objectively deficient performance and that 
would not have gone to trial had he not gotten such terrible advice.
 Sub-Rule: Counsel is not per se obligated to advise  on whether to accept a plea.
Purdy v. United States (2d Cir. 2000).
 Sub-Rule: Competent defense counsel must apprise  of plea consequences, including
mandatory deportation. Padilla case (2010).
 RULE: After plea has been entered, both sides are obligated to abide by their agreements.
 Santobello v. New York (1971) -  pled guilty based on promise from  not to make a
sentencing recommendation. But when the  pled, the  recommended the maximum
sentence. Court held that “when a plea rests in any significant degree on a promise or
agreement of the prosecutor, so that it can be said to be part of the inducement of
consideration, such promise must be fulfilled. Remanded for reconsideration even
though  did not establish prejudice.
 Ricketts v. Adamson (1987) -  agreed to plea to lesser charge in exchange for
testimony against others.  testified and others convicted, but convictions reversed on
appeal.  refused to testify at retrial unless he would be released after the trial (and
other benefits).  said agreement breached and tried (and convicted)  for original
higher charge.  claimed this violated double jeopardy. Court held that although
jeopardy usually attaches when punishment begins, because the agreement here was
clear that breach sets everything back at status quo ante, there is no double jeopardy
here.