CRIM PRO II

I. • THE CHARGING DECISION Prosecutorial Discretion
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Enforcement for Serious Crimes
− Inmates of Attica v. Rockafeller (1973) – Π has ↑ Discretion To Decide To Prosecute • prison riot inmates → allege revenge killings by Cos → sue to require to investigate and prosecute • Π has discretion re: decision to investigate, arrest, and prosecute regardless of statute mandating prosecution o NO standard for review, regulatory or statutory policies of prosecution too

many problems w/ ct supervising prosecutorial decisions → substitution of ct’s decision to prosecute for USDA unwise
o in the absence of egregious violations ct. has no power to force prosecution o separation of powers issue – cts. getting supervision would place reviewing court in undesirable and injudicious posture of becoming super-prosecutors

− 3 Obstacles to Claims Seeking to Force Prosecution
• separation of powers – judges don’t know reasons why decline to prosecute – scarce time and resources! • standing – private citizen lacks a judicially cognizable interest in prosecution or nonprosecution of another person • EP violation standard o EP only prohibits intentional discrimination → claim would only successful if could show declined to prosecute b/c of conscious decision to treat race differently

o

must also show discriminatory effect

− U.S. v. Armstrong (1996) – Selective Prosecution Claim Must be Supported by Clear Evidence That Similarly Situated Individuals Could Have Been Prosecuted but Weren’t • ∆ charged w/ drug trafficking → note racial disparity in state v. federal cases → motion for discovery re: selective Π claim • Π discretion is subject to constitutional constraints → EP prohibits decision to prosecute based on unjustifiable standard: race, religion, or other arbitrary classification

• to rebut presumption that Π hasn’t violated EP → ∆ must show, through some clear evidence, that similarly situated individuals of a different race weren’t prosecuted o “study” listing 24 by race and whether they were prosecuted NOT sufficient evidence

− didn’t ID any non-black individuals that could have been charged for same crime but weren’t − Vindictive Prosecution
• can’t increase charges for same conduct after successful appeal → presumption of vindictiveness • any other circumstances: presumption acted in good faith → ∆ must show improper motive o never happens → proving vindictiveness pretty much impossible

o

Enforcement for Low-Level Crimes
− Wayte v. U.S. (1985) – Passive Prosecution Policy Constitutional • ∆ refused to register for draft → sent letters to governmental officials informing them he’s not registering • out of 674K who refused to register → 16 prosecuted based on passive prosecution policy which prosecuted those who said they weren’t registering or those reported by others • passive prosecution policy constitutional o not motivated by discriminatory purpose or discriminatory effect

− those prosecuted selected themselves for prosecution by openly refusing to register after being reported and warned

∆ hasn’t shown prosecuted b/c of protest activities

o NO 1st Amendment violation – policy furthered important government interest and didn’t limit more speech than necessary to ensure goal

Methods of Charging o o 2 ways: indictment or information Indictment

− Grand Jury
• indictment – formal written accusation of a crime, made by a grand jury and presented to a court for prosecution against the accused person

• ALL federal felonies screened through GJ o GJ right not incorporated to states but most states have GJ requirements

o ex parte + secret presentation of evidence o failure rate <1%
• Costello v. U.S. (1956) – CAN’T Challenge Indictment for Inadequate or Incompetent Evidence → Indictment Based on Evidence that would be Inadmissible @ Trial OK

o indicted for income tax fraud based solely on hearsay testimony from 3 PO
o NO constitutional requirement for evidentiary standard for GJ → indictment based on hearsay valid − 5th Amn. doesn’t require have a kind of prelim. trial to determine competency and adequacy of evidence before GJ • historical basis of GJ allowed to use own knowledge to make decision → independence

• waste time
• no ↑ assurance of fair trial • U.S. v. Williams (1992) – Π NOT Required to Disclose Exculpatory Evidence to GJ o indicted for making false statements to influence a bank → challenges

indictment b/c Π didn’t present “substantial exculpatory evidence” to JGJ
o TC CAN’T dismiss an otherwise valid indictment based on failure to disclose exculpatory info − historically GJ intended to be independent: • scope of power to investigate – no judicial authority needed, can investigate for suspicion or to ensure no violation • manner of expressing power – some const. protections afforded in trial n/a GJ

o

Preliminary Hearing

− review informations
• information – formal criminal charge made by a prosecutor without a grand-jury indictment. o used to prosecute misd. in most states and ~ ½ states use for felony too

− Distinguished from GJ
• adversarial → ∆ has right to counsel

• judge decides • public
• possibly ↑ dismissal rate − Π present evidence → ∆ can cross-x → judge decides − “critical stage” → 6th Amn. right to counsel applies − ∆ frequently waive resources: could seek indictment anyway, $$$ •

Joinder and Severance
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FRCrimP R 8 – Joinder of Offenses and of ∆ s

− (a) Joinder of Offenses: indictment/information can charge 2+ offenses (fel. and misd.) if they are of the same/similar character, based on the same act or transaction, or a connected with or parts of a common scheme or plan − (b) Joinder of ∆ s: indictment/information can charge 2+∆ s if alleged to have participated in the same act or transaction or same series of acts or transactions constituting offense(s). Can be charged in 1+ counts together or separately. All need not be charged in each count.

o FRCrimP 14 – Relief from Prejudicial Joinder
− (a) Relief: if the joinder of offenses or ∆ s in an indictment, information, or trial appears to prejudice a ∆ or Π ct can sever counts, trials, or provide any other relief that justice requires − (b) ∆ ’s Statements: before ruling on motion to sever, court may order Π to produce any ∆ ’s statements it intends to use as evidence for in camera review o U.S. v. Velasquez (1985) – CAN’T Charge Different People w/ Similar, but Different Crimes in 1 Trial − 5 ∆ s: 5 cocaine trafficking, 1 heroin charges 3 conspiracy to retaliate against gov’t agents − when a group of people are charged w/ participating in same crime, they are ordinarily tried together, even if evidence is stronger against some danger of prejudice to least guilty or b/c of confusion of multi-∆ trial is in all but most unusually circs. considered outweighed by economies of a single trial in which all facets of crime can be explored once and for all − misjoinder on heroin charges → unrelated to other offenses, none of co∆ s involved in heroin sales and nothing to suggest they were made pursuant to a common plan w/ cocaine trafficking

AND THE RIGHT TO A SPEEDY TRIAL Bail and Detention o arraignment w/i ~24h after arrest → determine bail − factors considered • severity of crime • past conduct (esp. (1993) – TC Should Only Sever When Serious Risk of Compromising 1 ∆ ’s Specific Trial Rights − search warrant → found lots of drugs.• cocaine + heroin similar enough offenses to charge in same indictment (join offenses) NOT offenders • re-trial cocaine → weak evidence misjoinder could have prejudice • BUT overwhelming evidence of guilt for heroin charges →harmless error − misjoinder cocaine + retaliation → no showing retaliation was related to specific drug sale involved • BUT harmless error b/c overwhelming evidence of guilt − CAN’T charge different people w/ similar. U. past incidents of skipping bail) • ∆ ’s characteristics (local connections. $$ → all 4 arrested − motion to sever denied based on mutually antagonistic defenses (all claiming they didn’t know what was going on and blaming others) → all convicted (conspiring to possess w/ intent to distribute) − proper joinder – TC should only grant severance if there is serious risk that joint trial would compromise one ∆ ’s specific trial rights or prevent jury from making a reliable judgment re: guilt or innocence • mutually antagonistic defenses not prejudicial per se requiring severance • NO right to severance just b/c less likely to be acquitted in joint trial II.S. DETENTION. but different crimes in 1 trial • multiple joinder must be same event/plan/transaction o Zafiro v. wealth) − judge’s choices • release on recognizance – sign agreement promising to show up . • BAIL.

drug monitoring and treatment. Boyle (1951) – Bail is Unconstitutionally Excessive When Set Higher than an Amount Reasonably Necessary to Ensure ∆ ’s Presence @ Trial − suspected communists challenge bail: originally $2500-$100K. Π : 4 people charged w/ same crime forfeited bail − bail set at a higher figure than an amount reasonably calculated to assure will stand trial is excessive • should be calculated based on standards relevant to ensuring particular ∆ ’s attendance @ trial o evidence that 4 other people forfeited bail insufficient evidence to justify o U. bail. conspiracy to commit murder → denied bail b/c no condition(s) of release would ensure public’s safety → challenge Bail Reform Act of 1984 − Bail Reform Act constitutional • NO 5th Amnd violation o sufficient safeguards – hearing. fraud. check in w/ relevant authorities.• attach conditions to release – in custody of specific person. venue moved to CA $50K/each • ∆ : evidence of $$. immediate appeal available – + gov’t important general interest in protecting public from people indicted for serious crimes outweigh individual liberty interest • NO 8th Amnd violation o 8th Amendment doesn't require release on bail when Congress has mandated detention on the basis of compelling interest other than prevention of flight. counsel available. family connection. v. high evidence standard. seize passport • order continued confinement – NO conditions will reasonably ensure shows up for trial or serious danger to others o o 8th Amnd: Excessive bail shall not be required → doesn’t promise bail Stack v. like here o primary function of bail is to safeguard courts’ role in adjudicating guilt or innocent but 8th Amnd. Can Consider Dangerousness in Determining Bail − 29 ct indictment RICO. prior criminal records. doesn’t prohibit gov’t from pursuing other compelling interests through regulation of pre-trial release • Right to a Speedy Trial o Protections . extortion. Salerno (1987) – Ct.S.

Reason. Assert. suspicion. Prejudice − murder → co∆ tried 1st b/c stronger case and needed his testimony → 5 trials and 4y later co∆ convicted → ∆ bail → ∆ didn’t object until 12th continuance → denied → convicted − right to speedy trial different from other rights • societal interest • deprivation may work to ∆ ’s advantage → witnesses unavailable • more vague impossible to tell exactly when violated − right NOT quantified in specific number of days or months − ∆ who fails to demand speed trial NOT waiver → factor to consider − factors • length of delay o acceptable length depends on circs. can’t have a job o minimize ∆ ’s anxiety and concern → living w/ anxiety. • reason for delay unacceptable reasons o deliberate delay to interfere w/ defense o negligence. Wingo (1972) – 4 Factors Speedy Trial: Length. time o missing witness • ∆ ’s responsibility to assert right o assertion strong evidentiary weight o failure to assert makes challenge hard to prove • prejudice – assessed in light of 3 reasons for speedy trials: o prevent oppressive pre-trial incarceration → disrupts family. hostility .− 6th Amnd – In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial − statutes of limitations − DP – delay unjust and prejudicial to ∆ may violate o Barker v.

released on bail most of the time • ∆ didn’t assert right didn’t object to continuances between ‘58-’62 maybe hoped delay would result in dismissal. circs. must consider reason for delay → trying to ID participants other than ∆ • Π not required to file charges as soon as P/C before determining that they’ll be able to prove case BRD o ↑ unwarranted charges. ↑ delay . of delay. not much info gathered in next 17m. find witnesses.o limit impairment on defense → incarcerated can’t help gather evidence.S. possibly gambling on co∆ ’s acquittal o Speedy Trial Act of 1974 − federal info/indictment must be filed w/i 30d of arrest or summons − trial must be w/i 70d of filing info/indictment or first appearance. v. ∆ didn’t seem want speedy trial and minimal prejudice • 4y = significant delay • only 7m was for good reason → everything else was failure to properly try co∆ • minimal prejudice: didn’t show any witness/evidence was unavailable. even if some prejudice to ∆ ’s case • SoL is ∆ ’s primary protection • ct. etc. − NO violation → although significant delay and mostly w/o good reason. whichever later − detained pending trial must start w/i 90d of detention − NOT including unavailability of ∆ or key witness. transportation. reasonable maneuvering by co∆ or other proceedings involving ∆ (ALL delays caused by pre-trial motions necessitating a hearing even if reasonably necessary) − remedy – dismissal w/ or w/o prejudice depending on seriousness of crime. lost testimony of 2 material witnesses − NO DP violation for prosecution after investigative delay. potential effect on administration of justice − usually complying w/ stat = compliance w/ 5th Amnd U. Lavasco (1977) – NO DP Violation for Indictment/Prosecution for Investigative Delay Even w/ Some Prejudice to ∆ ’s Case o − firearms charges → indictment 18m after alleged crimes occurred − ∆ ’s evidence of prejudice: w/i 1st month of investigation ∆ admitted stealing 5/8 guns w/ strong evidence of other 3.

S. police don’t try to find him until ’88 when name comes up in credit check w/ outstanding warrant −  ∆ entitled to relief when gov’t negligence causes delay 6x longer than generally sufficient to trigger judicial review.o investigative delay ≠ delays used to gain tactical advantages over ∆ o Doggett v. is neither extenuated. albeit unspecified. public interest in effective administration of justice − o guilty plea – accused person's formal admission in court of having committed the charged offense o • not guilty plea Guilty Pleas as a Substitute for Trials o Plea Process − FRCrimP 11 . as by acquiescence (Barker). • GUILTY PLEAS AND PLEA BARGAINING Types of Pleas o conditional plea – plea of guilty or nolo contendere entered w/ ct approval and Π consent ∆ reserving right to appeal any adverse determinations on 1+ pretrial motions − successful appeal → plea w/d new one entered o nolo contendere plea – plea by which ∆ doesn’t contest or admit guilt consider parties’ views.S. and when presumption of prejudice. nor persuasively rebutted • Barker factors o extraordinarily long delay o to blame – investigators made no serious effort to determine whether ∆ was really abroad o ∆ didn’t know of charges → couldn’t assert right o excessive delay presumptively compromises trial reliability in ways that neither party can ID − consideration of prejudice isn’t limited to the specifically demonstrable impairment III. U. (1992) – Excessive Delay Presumptively Compromises Reliability (Prejudice) − ’80 indicted for conspiracy to import and distribute cocaine → left country couldn’t be arrested → drug charges in Panama U.

authority to order restitution o ct obligation to apply sentencing guidelines o terms of any plea agreement provision waiving right to appeal or collaterally attack sentence • Ensuring the Plea is Voluntary: ct. must determine that there is a factual basis for the plea • Withdrawing a Guilty or Nolo Contendere Plea: ∆ can withdraw plea o before ct.• failure to enter plea = not guilty plea • Advising and Questioning the ∆ : before accepting guilty or nolo contendere plea ct must inform ∆ and make sure understands: o Π can use any of ∆ ’s statements made under oath for prosecuting perjury o right to − − − − − − − plead guilty jury trial represented by counsel and have appted counsel right to confront and cross-x witnesses protection from self-incrimination testify and present evidence require witness’s attendance o guilty plea accepted = waiver of rights o nature of pending charge and max. accepts it o after ct. min. Morgan – incorrect description of the crime charged in the guilty plea colloquy violated DP o ct. or promises (other than plea agreement) • Determining the Factual Basis for the Plea: ct. must determine plea is voluntary and didn’t result from force. accepts but before sentencing if − ct rejects plea agreement − ∆ can show fair and just reason for requesting withdraw . threats. punishment − Henderson v.

Broce (1989) – Fact that ∆ Decided they Wrongly Plead Insufficient to Set Aside an Otherwise Valid Guilty Plea • ∆ plead guilty to 2 separate counts of conspiracy and didn’t challenge plea colloquy or adequacy of counsel • after conviction based on guilty plea is finalized and ∆ seeks to reopen the proceeding ask whether the underlying plea was both counseled and voluntary.S. offense b/c he faced CP if he didn’t → TC confirmed he wanted to plead • ∆ can voluntarily. as a general rule foreclosed collateral attack o TC complied w/ R11 o fact that ∆ later decided they wrongly plead not sufficient evidence to set aside an otherwise valid guilty plea − NC v. the plea. v.S. and intelligently consent to imposition of prison sentence even if unwilling or unable to admit participation in acts constituting the crime o an express admission of guilt is not necessary for a valid plea o guilty plea to avoid or reduce certain sentence isn’t necessarily compelled or involuntary o can accept nolo contendere pleas in which ∆ doesn’t admit guilt → same thing labeled differently o Role of Defense Lawyers . Alford (1970) – Express Admission of Guilt is NOT Necessary for Valid Guilty Plea • indicted for murder claimed innocence but plead guilty of lesser incl. if the answer is in the affirmative. Dominguez-Benitez (2004) – ∆ can only be successful in claiming judge didn’t say required things under R11 if they can show there is a reasonable probability that. v.• Finality of a Guilty or Nolo Contendere Plea: after sentencing can’t w/d plea and it can only be set aside on direct appeal or collateral attack • Recording the Proceedings: plea proceedings must be recorded by a court reporter or suitable recording device. knowingly. guilty or nolo contendere pleas must include inquiries and advice to ∆ as required • Harmless Error – variance from the requirements of this rule is harmless error if it does not affect substantial rights o U. ∆ wouldn’t have plead guilty − U. but for the R11 error.

U. Plea NOT Invalid b/c ∆ Motivated by ↓ Sentence • kidnapping → ∆ initially plead not guilty → changed mind when co∆ was going to testify against him → ct accepted guilty plea after asking 2x re: voluntariness → 8y later challenges plea claiming coercion • valid guilty plea . appt. atty didn’t tell him that as a 2x offender he had to serve ½ sentence before eligible for parole • Strickland 2-part test applies to guilty plea challenges baesd on ineffective assistance of counsel: must show representation unreasonable and prejudicial o to satisfy prejudice requirement:∆ must show that there was reasonable probability that.S. he would not have pleaded guilty and would have insisted on going to trial • NO prejudice when didn’t allege that if he had correct info re: parole eligibility he wouldn’t have plead guilty and instead would have gone to trial. Barnes (1996) – atty didn’t realize qualified as career offender that would increase sentence 250x → NO deficient performance time constraint of plea bargaining so close to change of plea hearing possible that he didn’t or couldn’t carefully analyze • Plea Bargaining o − − 3 Types charge bargains – in exchange for guilty plea Π promises to drop or not add specified charges sentence recommendations – Π agrees to recommend or not to oppose a particular sentencing range • sometimes not followed by ct − sentencing range agreement – Π agrees on sentencing range or that particular provision of sentencing guidelines or sentencing factor n/a • rare and prohibited in some JDs o Voluntariness − Brady v. (1970) – Plea Bargains Legit.− Hill v.S. v. but for counsel's errors. nor any evidence that could support the conclusion that he placed particular emphasis on his parole eligibility in deciding whether to plead − Glover v.S. (2001) – 6-21m increase in prison sentence satisfied prejudice prong − U. U. Lockhart(1985) – NO Prejudice When Didn’t Allege that If Given Correct Info He Would Have Insisted on a Trial Instead of Pleading Guilty • 2y after plead guilty to murder and robbery files habeas b/c ct.

Hayes (1978) – NO DP Violation When Carries Out Threat to ReIndict w/ Higher Charges that Would Already be Subject to b/c ∆ Didn’t Accept Plea • check forgery → Π : plead guilty or you’ll be charged under 3 strikes law → mandatory life sentence → didn’t plead → re-indicted → convicted • NO DP violation when Π carries out threat made during plea negotiations to reindict on more serious charges when ∆ plainly subject to prosecution for if doesn’t plead guilty to original charges o by tolerating. legitimizing. v. Pollard (1992) – Plea Wiring Constitutional unless Evidence of Bad Faith or No P/C • ∆ espionage gives info to Israel → during interrogation calls wife w/ secret code word to get rid of docs → wife’s illness gets exacerbated in jail → Π : both plead guilty or no pleas at all → both plea and ∆ gets leniency for wife • 4y later [after wife gets out] ∆ challenges plea as involuntary • plea wiring constitutional → Π offer of adverse or lenient treatment for some person other than ∆ is NOT so coercive as to risk inducing false guilty pleas .S. aware of charge and evidence. competent counsel o intelligent plea: competent counsel.o plea not invalidated b/c it was motivated by ∆ ’s desire to receive certainty or probability of lesser sentence rather than take chances w/ trial o voluntary plea: no threats or promises.Ct. able to weigh risks. necessarily accepts that Π ’s interest is to persuade ∆ to give up right to plead not guilty − not allowing that motivation would contradict purposes of plea bargaining and basically prohibit bargaining o just openly presented ∆ w/ unpleasant alternatives of refusing to plead o as long as have P/C for crime and not based on unjustifiable standard → Π discretion o Subject Matter of Plea Bargains − plea bargaining doesn’t inherently undermine the voluntariness of resulting plea or validity of the harsher sentence imposed after trial • BUT certain subjects are off-limits − U. chose to plead after co∆ did o not entitled to w/d guilty plea after its acceptance b/c he miscalculated quality of Π ’s case or likely penalties − Bordenkircher v. and encouraging plea bargaining S. no evidence of incompetence.

Π : make no sentencing rec.def. Mezzanatto (1995) – Voluntary and Knowing Waiver of Exclusionary Privilege of Plea-Statement Rules Valid • FRE 410 – no statement in plea discussion can be used against party making them • plea bargaining condition that ∆ be truthful → ∆ lied convo ended → contradicting trial testimony → Π want to into plea bargaining convo statements to impeach • agreement to waive exclusionary provisions of plea-statement rules was valid and enforceable where ∆ conferred w/ his counsel after Π proposed waiver as condition of proceeding with plea discussion and ∆ never complained that he entered into waiver agreement unknowingly or involuntarily o w/o agreements Π may refuse to plea bargain o Plea Bargains as Contracts − Santobello v. not incarcerated. . represented by experienced crim. v. atty who drafted agreement. considered for 3 days before signing o possibility that some release-dismissal agreements may not be voluntary or knowing doesn’t justify invalidating all agreements. could be − U.o Π had P/C to arrest and prosecute both o no evidence of using bad faith to get more leverage: indicted and intended to prosecute wife OR offer leniency in exchange for pleas o practice = “coercive” or makes plea “involuntary” if it creates improper pressure that would be likely to overbear will of some innocent person and cause them to plead guilty: − physical harm − threats of harassment − misrepresentation − improper promises that have no relationship to Π ’s business (bribes) − Newton v.S. esp. NY (1971) – When Π ’s Promise Serves as an Inducement or Consideration for Plea → Must be Fulfilled • ∆ : plead guilty to lesser-included offense. Rumery (1987) – • journalist calls SA survivor but didn’t actually know he was talking to survivor Π brings charges for witness tampering reach agreement to drop ALL charges in exchange for ∆ dropping civil claims under §1983 • valid agreement → voluntary: ∆ was sophisticated business man.

• new def. IV. Traynoff (1995) – reasonable and detrimental reliance is required for to be required to follow w/d plea agreement − Rickets v. after ∆ had been sentenced and began serving term on lesser offense. justice and recognition of Π ’s duty re: promises in plea bargaining best served by remand − Santobello + Brady – Π can promise charging or sentencing concessions w/o involuntary plea but must keep its promises − Marby v. • DISCOVERY AND DISCLOSURE Disclosure by Π . assault. where plea agreement provided that parties would be returned to status quo ante if ∆ refused to testify. Johnson (1984) – Acceptance of 1st Proposed Plea Bargain DOESN’T Create a Constitutional Right for Specific Enforcement After Its Withdrawn • convicted burglary. v. Adamson (1987) • ∆ agrees to testify against co-∆ for decreased sentence → both convicted → convictions reversed → ∆ refuses to testify anymore because he fulfilled his agreement unless he gets certain additional things → Π rescind plea agreement bring capital charges • ∆ ’s breach of plea agreement by refusing to testify at co∆ ’s retrial removed DJ bar to prosecution of ∆ on original charges. atty w/d guilty plea b/c evidence from illegal search → delays → new Π recommends max sentence • judge says isn’t impacted by plea → max sentence based on criminal history • when plea relies on promise/agreement from Π to a significant degree to the point of being part of inducement or consideration must be fulfilled o even though judge said not influenced by it.S. murder → murder reversed → sentenced to concurrent sentences → plea offer: plead guilty get concurrent sentences → ∆ accepts → later Π w/d and changes offer to consecutive → ∆ accepts → later challenges •  ∆ ’s acceptance of 1st proposed plea bargain does NOT create constitutional right to have bargain specifically enforced after ∆ told it was a mistake and Π w/d offer o NO collateral attack b/c not product of deception. based on no unfulfilled promise. and voluntary and intelligent − distinguished from Santobello – plea wasn’t induced by w/d offer → knew what sentence would be − fully aware of consequences of plea when made − U.

deny. Bagley – regardless of request favorable evidence is material constitutional error when suppressed by Π if reasonable probability that had it been disclosed to ∆ result of proceeding would have been different • 4 factors of materiality o undermine confidence in verdict . v. Nobles (1975) – work product doctrine applies to criminal cases o Constitutional Disclosure Obligations − Brady v. restrict. agent. MD – Π suppression of material evidence favorable to ∆ upon request violates DP. tangible evidence /i Π possession intended for use @ trial and obtained from or belonged to ∆ o results/records of any physical/mental exam or scientific test w/i Π possession. qualifications • DON’T have to disclose: reports. for good cause.S. memos. or grant other appropriate relief − U. possibly to prevent ∆ from creating defense to match evidence) − FRCrimP 16(d) – judge can. v. reasoning. papers. other internal gov’t docs made by atty or gov’t agent. regardless of good or bad faith • no timing for Brady disclosures DP presumably requires disclosure giving sufficient time to effectively use evidence − U. or employee or someone personally involved in conduct o ∆ ’s prior criminal record o books. photos.S. material to defense or intended to use @ trial o summary of any expert witnesses intended to use @ trial including: opinions. or defer discovery or inspection. knows/should know exists. or statements made by potential Π witnesses (safety concerns.o General Discovery Obligations − FRCrimP 16(a) • upon ∆ ’s request Π must disclose to ∆ o substance of any relevant oral statement made by ∆ in response to interrogation by person known to be gov’t agent if Π intends to use @ trial o written recorded statements w/i Π possession knows/should know exists o written record of oral statement made re: interrogation o ∆ = organization – any statement made by officer . data.

Ruiz – Const. Whitley (1995) – Violation if Π Didn’t Disclose Exculpatory Evidence that Could Have Reasonably Achieved a Different Result if Disclosed • old lady killed in grocery store parking lot • evidence pointing towards guilt: 4 eyewitness IDs. 2 witnesses didn’t match ∆ (more like informant).o ∆ doesn’t need to show that undisclosed evidence would discount inculpatory evidence to be insufficient for conviction o don’t need harmless error review o Π has discretion (NOT open file) BUT Π has a duty to know about favorable evidence known by everyone acting on Π ’s behalf − Kyles v. doesn’t require Π to disclose impeachment material re: informants or other witnesses before entering into a plea agreement • Disclosure by ∆ o Constitutional Disclosure Obligations − asymmetrical – no equivalent of Brady – ∆ doesn't have constitutional or statutory requirement to turn over inculpatory evidence unrequested − Williams v. list of cars in parking lot didn’t include ∆ ’s car • convicted • favorable material evidence not disclosed → if it had different result was reasonably possible → violation o disclosure would have made Π ’s case weaker and ∆ ’s case stronger − similarity of ∆ and informant → informant more closely matched witness’s descriptions − difference in witness’s testimony about perspective of crime destroy witness credibility − other witnesses IDing ∆ would be damaing to Π b/c only saw him leaving − attack reliability of the investigation in failing to consider informant as suspect and tolerating serious possibility that incriminating evidence was planted − U. same brand of pet food in house. v. gun found behind stove.S. FL (1970) – ∆ Can be Required to Provide Notice of Alibi Defense and Witnesses . purse and ID in garbate • Π didn’t disclose (exculpatory evidence): informant gave conflicting statements.

OR (1973) – fundamentally unfair to require ∆ to disclose details of own case while at the same time subjecting him to the hazard of surprise re: refutation of evidence disclosed • result → rules provide for reciprocal discovery o − Sanctions for Nondisclosure Taylor v. just sped up process − Brooks v. IL (1988) – TC Can Exclude Testimony If Explanation for Not Complying w/ Discovery Rules Reveals Intentional Omission Intended to Gain Tactical Advantage • convicted attempted murder → pre-trial ∆ list 4 people going to testify 2nd day of trial (Π pretty much done with case). doesn’t give ∆ a constitutional right to wait until Π ’s case rest before announcing defense just like it doesn’t entitle him to wait verdict on case-in-chief before deciding to testify o rule didn’t impact choice to present alibi.• challenges FL RCrimP that required him to disclose whether he’s going to use an alibi and details of alibi under 5th Amnd. TN (1972) – • required to testify before any other ∆ witnesses → ∆ can’t decide to testify after 1st witness asked 1st ? • violated ∆ ’s 5th Amnd + ∆ CAN’T be penalized for silence at close of state’s case by being excluded from testifying later o Π ’s interest in preventing testimonial influence by requiring ∆ to testify before any other testimony for the defense is heard is NOT sufficient to override ∆ 's right to remain silent in trial − Wardius v. violation in requiring ∆ to provide notice of alibi defense and disclose witnesses o 5th Amnd. potential prejudice to truth-determining trial process . interest in fair and efficient administration of justice. • NO 5th Amnd. ∆ wants to add new witness because they know where person was → offer of proof outside of court and witness testifies more favorably after Π case • witness: saw victim w/ guns and saying they were going after ∆ → BUT only met 2y after assault → acknowledged that ∆ atty went to his house before trial • TC excluded witness’s testimony •  6th Amnd compulsory process clause does not create absolute bar to preclusion of testimony of ∆ witness as sanction for violating discovery rule o considerations: integrity of adversarial system.

except in the case of impeachment shall be by jury − 6th Amnd. (1895) – jury CAN’T nullify the law (ignore judge’s instructions and decide based on their opinion of what law should be • ct responsibility to declare law.S. III §2 – The trial of all c rimes. • JURY AND CRIMINAL TRIAL Right to a Jury Trial o Constitutional Basis − U.S. Art. LA (1968) • right to jury trial is a fundamental right and is incorporated to state via 14th Amnd. o prevent gov’t oppression o protect against unfounded criminal charges to eliminate enemies o safeguard against over-zealous Π and/or biased and compliant judge o opportunity to seek common-sense judgment of jury rather than judge o reluctant to give so much power over citizens to judge(s) o Purpose of Jury − Sparf v. U. jury applies it . Const. all criminal prosecutions accused shall enjoy the right to a speedy and public trial by an impartial jury of the state and district wherein the crime shall have been committed − Duncan v. state bars not equipped to handle cases like this w/o more resources (hard to prove) o sometimes ∆ s get burned by atty bad decisions V.o TC can exclude testimony if party’s explanation for refusal to comply with discovery rules reveals − omission was willful − motivated by desire to obtain tactical advantage to minimize effectiveness of cross-x and presentation of rebuttal evidence o appropriate in this case: − deliberately seeking tactical advantage – counsel interviewed witness before trial + amended answer to discovery 1 day in to trial w/o including witness − other sanctions ineffective → continuance doesn’t punish.

NY (1970) – line NOT between felonies and misdemeanors − Lewis v. Thomas (1997) – potential jurors who ID themselves as potential nullifiers can be excluded − def. U.− U. v. or truly represent community o no significant state interest in reducing size .S. (1996) – strong presumption against 6th Amnd.S.S. U. GA (1978) – Less than 6-Member Jury Unconstitutional • obscenity case tried w/ 5 jurors • right to jury trial applies b/c punishment 6+m prison • jury of only five persons unconstitutional o 6 member jury ok − big enough to promote group deliberation − prevent outside intimidation − provide representative cross-section of community o less than 6 members impairs jury’s functions − memory problems − ↓ likely to overcome member bias − ↑ risk of convicting innocent person − ↑ inconsistency − ↓ hung juries b/c 1 minority view will not hold out as long as if there were 2 o unanimity requirement doesn’t solve problems doesn’t show meaningful group deliberation. (1965) – NO constitutional right to insist on bench trial • Jury Composition o Size − Ballew v. memory. for crimes w/ max punishment >6m in prison UNLESS it also involves additional statutory penalties so severe as to indicate legislature considered offense serious − Patton v. atty CAN’T argue or present evidence for a nullification defense o When Right Attaches − Duncan v. LA – n/a to “petty crimes” − Baldwin v.

requires unanimity o Trial Location − vicinage – place where a crime is committed or a trial is held. McCree (1986) – death qualification DOESN’T violate fair cross-section requirement • fair cross-section doesn’t invalidate for-cause or peremptory challenges OR require petit juries to reflect composition of society at large • groups defined only by shared opinions are not “distinctive” groups o exclusion of people opposed to CP doesn’t contravene any 3 purposes for fair cross-section requirement: − excluded for legally valid reason → little danger of arbitrarily skewing jury − excluded for a reason w/i their control → no appearance of unfairness − can serve as jurors in other cases → no substantial deprivation of their basic rights of citizenship − Duren v.: women automatically exempt from jury duty unless they request to be on it . v. v. the place from which jurors are to be drawn for trial.o Unanimity − Apodaca v.S. must mean same thing in state and federal trials • 5 justices: 6th Amdn. esp.S. OR (1972) • 8 justices: 6th Amnd. Rodriguez-Moreno (1999) – ∆ charged w/ using firearm in crime of violence can be tried in any district where crime of violence occurred even if gun wasn’t used there − U. MO (1979) – Systematic Exclusion of Distinctive Group that is Unreasonable and Unfair re: # of Persons in Community and Manifestly Inconsistent w/ Significant State Interest → Unconstitutional • MO stat.. Cabrales (1998) – ∆ charged w/ money laundering can’t be tried in MO b/c even though $$ came from illegal drug sale in MO. the locale from which ∆ is entitled to have jurors selected − U. money laundering only occurred in FL o Fair Cross-Section Requirement − reasons for fair cross-section requirement • guarding against exercise of arbitrary power • preserve public confidence in fairness of CJ system • promote civic responsibility − Lockhart v.

AL – State’s purposefully or deliberate exclusion of AA from juries based on race violates EP − Batson v.• systematic exclusion of women that results in jury venires averaging less than 15% female violates fair cross-section requirement o must show − excluded group is distinctive • Taylor women are distinctive − representation of group is unfair and unreasonable re: # of persons in community • 50%+ population is women but only 14% women in venire • underrepresentation due to systematic exclusion in jury selection process − manifestly inconsistent w/ significant state interest • domestic responsibilities insufficient justification for disproportionate exclusion − Strauder v. WV (1800) – trial of black ∆ by jury from which blacks have been purposefully excluded violates EP − Swain v. KY (1986) • Π uses peremptory challenges to strike all 4 AA jurors in venire → no AA in petit jury • right to be tried by jury selected by non-discriminatory means: o NOT excluded based on race or false assumption that members of race are categorically unqualified as jurors o undermine public confidence in system • for successful claim of discriminatory selection of venire must show o o ∆ member of racial group + Π has removed jurors of that particular race peremptory strikes raise inference of discrimination → 1st strike (even if racially-motivated) free → no pattern Π can’t offer a race-neutral explanation for strike − don’t need explanation sufficient for cause. but can’t say “just because” o • lower ct refused to consider claim despite timely objection → remand .

B.• concurrence (Marshall): get rid of peremptory challenges completely 1 or 2 peremptory challenges can get rid of certain types of jurors but can be explained away − Miller-El v. Dretke (2005) • Π ’s decision to seek jury shuffle rearranging order in which members of venire panel are seated and questioned when predominant number of AA are seated in front + decision to delay formal objection to ∆ ’s shuffle until after new racial composition is revealed → suspicion that Π seeking to exclude AA from jury and can be considered to determine whether Π ’s proffered race-neutral explanation is pre-textual − J.E. v. T. NY – challenges based on perceived problems w/ bilingual jurors’ acceptance of official translation of Spanish testimony = race neutral • Purkett v. AL ex rel. Elem (1995) – Π striking black jurors based on appearance = race neutral o appropriate focus is on genuineness of proponent’s race-neutral motive rather than reasonableness o Impartial Jury − Wainwright v. (1994) – Batson Extended to Gender • using gender-based peremptory challenges violates EP • gender stereotypes insufficient justification for gender-based challenges • even w/ some truth must avoid superficial judgments that will stigmatize and perpetuate historical patterns of discrimination − Powers v.B. Witt (1985) – prospective juror lacks impartiality only if s/he has views about a case strong enough to prevent or substantially impair the performance of juror duties − impartiality NOT no knowledge of facts or opinions about case − Race . Ohio (1991) – ∆ has Standing to Object to Race-Based Exclusions of Jurors Via Peremptory Challenges Regardless of Whether and ∆ Jurors Same Race • under EP ∆ has standing to object to race-based exclusions of jurors through peremptory challenges whether or not ∆ and excluded jurors share same race o race-based peremptory challenges DON’T survive EP just b/c all races subject to equal treatment → white jurors subject to same risk of peremptory challenges based on race as all other jurors − Acceptable “Race-Neutral” Reasons for Race-Based Peremptory Challenges • Hernandez v.

McCree (1986) o ∆ : excluding jurors who would be impartial re: guilt/innocence but opposed to CP violates right to impartial jury o impossible to exactly balance impartiality const. U. absent questioning about racial prejudice. VA (1991) • • convicted murderer escapes from work detail and murders someone else case sensationalized .• Ham v. Witt (1985) – standard: will juror’s view prevent or substantially impair performance of duties as a juror in accordance w/ instructions and oath? o bias can’t always be determined by Q&A o must give deference to TC impression that juror would be unable to faithfully and impartially apply law b/c 1sthand impression • Lockhart v. need to question re: racial prejudice need more substantial indications of likelihood of racial ethnic prejudice impacting jurors impartiality to be unconstitutional • Turner v. presumption that jury selected from fair cross-x is impartial regardless of actual mix of viewpoints as long as jurors can conscientiously and properly carry out sworn duty to apply law to facts • Influences on Jury o Publicity − Mu-Min v. Ross (1976) – Ham reflected an assessment of whether under all circs. Murray (1986) – capital ∆ accused of interracial crime is entitled to have prospective jurors aware of victim’s race + questioned re: racial bias − Death Penalty • Witherspoon v. jurors would not be impartial o simple assault. (1986) – inter-racial violent crime alone insufficient to create const. presented there was a constitutionally significant likelihood that.S. no racial lens required • Rosales Lopez v. SC (1973) – black civil rights activist ∆ must be able to question jurors about racial bias b/c race related to defense • Ristaino v. IL (1968) – persons opposed to CP can be excluded on impartiality grounds if it is unmistakably clear that o o automatically vote against CP regardless of evidence attitude towards CP would prevent impartial decision re: guilt • Wainwright v.

shot kid who came to help • Π ’s closing argument: calling ∆ animal.o confession = conscious guilt o could have been executed for prior crime except CP was illegal o prior criminal history o killed then ate lunch o future danger to society • 2/3 prospective jurors heard something about case only 1 admits can’t be impartial all selected jurors didn’t claim formed opinion or bias/prejudice towards ∆ • TC’s refusal to ? prospective jurors re: specific contents of news reports did NOT violate 6th Amnd right to impartial jury or 14th Amnd DP o NO Const. but whether jurors @ trial had such fixed opinions that they couldn’t impartially judge ∆ ’s guilt o Improper Prosecutorial Argument − Darden v. wish victim had shot ∆ in the head and in the face (graphic description). killed 1 owner. wish ∆ was killed. Yount (1984) – relevant question isn’t whether community remembered the case from 1st trial. CP only way to prevent future crimes • Π ’s statement DIDN’T deprive ∆ right to fair trial o only question: did comments so infect the trial to make it unfair to the point of denying DP? → NOPE . right to ? re: content of what each juror has read/heard/seen before trial o TC asked 4 questions about pretrial publicity’s effect on them THEN additional voir dire in panels of 4 each time individual juror indicated had knowledge re: case from outside sources TC asked whether formed an opinion o although ?s re: content of publicity would be helpful to assess impartiality → TC’s failure to ask ? must render ∆ ’s trial fundamentally unfair o media is too prevalent + too hard to find people that haven’t heard anything o TC are best able to judge the severity and prejudicial effect of pre-trial publicity − Patton v. SA another. Wainwright (1986) – Did Improper Arguments So Infect Trial as to Make it Unfair to the Point of Denying DP? • furniture store robbery.

o although improper to say CP only way to prevent future crime and re: animal b/c some comments in response to ∆ ’s closing arguments + harmless error (?) b/c − significant evidence of guilt − didn’t manipulate or misstate evidence − jury instruction − ∆ ’s rebuttal closing argument “repaired damage” − Berger v. v. CA (1965) – Π can’t comment on ∆ not testifying → punishing ∆ for exercising Const. right − Carter v. KY (1981) – TC must instruct jury NOT to draw any adverse inferences from ∆ ’s silence if requested .S. U. DeChristoforo (1974) • Π closing argument: “I honestly and sincerely believe that there is no doubt in this case” • conviction affirmed b/c TC quickly told jury statements not evidence + overall impact was insufficient for DP violation − U.S. MS (1985) • capital sentencing phase → ∆ : have mercy. (1935) – has equal duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one − Donnelly v. Young (1985) • ∆ closing argument: intentionally w/h exculpatory evidence + “no one here believes ∆ intended to defraud victim” • Π closing argument offered personal opinions about guilt • conviction affirmed → Π ’s statement in response to ∆ ’s + no plain error requiring ct to overlook fact that ∆ didn’t object − Caldwell v. by suggesting that ultimate punishment decision wasn’t w/ jury • ∆ ’s Rights o [Not to] Testify − Griffin v. Π : jury’s decision for CP isn’t final o NOT invited response didn’t have much to do w/ mercy plea o violate 8th Amnd.

right to be present @ trial o no reason to treat testifying ∆ s differently than other witnesses − witness’s ability to hear prior testimony and tailor his/her testimony threatens integrity of trial whether witness is just witness or testifying ∆ o can’t sequester ∆ → appropriate to comment on presence during other testimony to help jury consider credibility − According Griffin + Agard? • broad reading – no burden on invoking right to testify. regardless of reason • narrow reading – won’t burden invocation when there could be guilty or innocent reason .S. – use of ∆ ’s silence @ sentencing unconstitutional o Physical Presence − IL v. Allen (1970) – TC Has Discretion to Deal w/ Disruptive and Defiant ∆ • when ∆ was disruptive and defiant TC has substantial discretion to deal o bind and gagging o contempt o removing until agrees to behave properly − Holbrook v. Stincer (1987) – ∆ Only Has Right to Be Present at Stages of Criminal Proceeding in which it is Crucial for ∆ to be Present • NO right to be present @ CSA survivor’s competency hearing o NOT giving substantive testimony o ∆ didn’t show his presence would have been useful − Portuondo v. Flynn (1986) – NO DP violation for requiring ∆ to be surrounded by plainclothes numerous police in ct. OH – Π CAN’T use silence after Miranda warnings − Mitchell v.− Doyle v. U. − KY v. Agard (2000) – Π CAN Comment on Testifying ∆ ’s Ability to Hear All Witness Testimony and Possibly Tailor Testimony • ∆ testifies → Π closing argument: ∆ heard all evidence before testifying and had opportunity to tailor testimony • comment didn’t violate 6th Amnd.

Washington (2004) • husband and wife confront victim over rape allegation → husband stabs victim claiming self-defense → during interrogation wife: victim didn’t have weapon • TC admits wife’s statement to police b/c sufficient indicia of reliability → convicted • criminal case + statement used against ∆ + witness not on stand/unavailable → CC issue • testimonial out of court statements by witnesses are INADMISSIBLE under CC unless witnesses are (1) unavailable and (2) ∆ had prior opportunity to cross-x. don’t want to be tricked. serious public speaking anxiety • Scalia says Griffin is dumb but does Agard weaken Griffin enough to allow Π to comment on silence? o problem determining guilty or innocent reasons o don’t know potential groundwork for pushing towards limiting to only innocent reasons o To Obtain Evidence − AZ v. Youngblood (1988) CSA evidence either not properly preserved or too small for testing • ∆ must show bad faith of police in failing to preserve potentially useful evidence → otherwise NO DP violation o limit police’s responsibility to preserve evidence to reasonable bounds o limits cases only where justice requires o Confrontation − Crawford v. regardless of whether ct thinks they’re reliable o historical – CC adopted to keep ex parte examinations out of evidence [Sir Walter Raleigh] o Roberts is unpredictable and inconsistent o wife’s statement violates CC → inadmissible → reversed o “leave definition of testimonial for another day” but minimally includes − preliminary hearing testimony − grand jury testimony − testimony at previous trial .o innocent reason – don’t want to expose prior convictions.

Washington (2006) • 2 DV ∆ s challenge testimony to police/911 as testimonial statements violating CC o Washington – police testify about responding to 911 call for DV + admit 911 tape of victim IDing ∆ as attacker → convicted o Hammon – police respond to DV + testify about what victim told them and her affidavit for battery → convicted • CC applies only to testimonial statements o testimony – a solemn declaration or affirmation made for the purpose of establishing or proving some fact • primary purpose test o non-testimonial statements (NOT subject to CC) when made in the course of a police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency − 911 call = non-testimonial → NO CC violation → admissible → affirmed • describe events as occurring • frantic. MD (1998) . NOT to learn about what happened in the past o testimonial statements (subject to CC) when the circumstances objectively indicate that there is no ongoing emergency and the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution − interrogation = testimonial → CC violation → inadmissible → remanded • statements made during interrogation into criminal conduct to elicit what HAD happened • no immediate emergency: no circumstantial evidence of current fight and victim stated things were fine • statements obtained under circumstances very similar to witness testifying on direct-x − Gray v. immediate emergency info elicited intended to help resolve emergency. present tense.− custodial police interrogations − Davis v.

such as blank space. prohibits introduction of confession in joint trial of non- testifying co∆ w/ limiting instruction that jury not to consider as evidence of ∆ ’s guilt o Richardson v. Π Q: after co∆ confessed arrested ∆ A: yes. AL (1961) – General Right to Counsel in ALL Capital Cases − Johnson v. illiteracy. feeble-mindedness. word “deleted. • RIGHT TO COUNSEL The Constitutional Requirements o 6th Amendment: ∆ shall enjoy a right to have counsel to assist in defense Right to Assistance of Counsel at Trial o − Powell v.• indicted for murder → joint trial • co∆ ’s confession admitted but TC required ∆ ’s name redacted or say “deleted” when introduced/testified about. AL (1932) – Special Circumstances Rule • DP requires counsel in capital cases when ∆ in capable of adequately making own defense b/c ignorance. Marsh – co∆ confession admissible in joint trial w/ appropriate limiting instruction and redacted to eliminate ∆ ’s name and any reference to ∆ ’s existence • Bruton rule prohibiting introduction during joint trial of confession of nontestifying codefendant which names defendant as perpetrator extends also to redacted confessions in which name of defendant is replaced with obvious indication of deletion.” or similar symbol o redactions that simply replace names w/ obvious indication of alteration closely resemble Bruton → violate 6th Amnd o obvious deletion may make deletion stand our more give confession more importance o redacted confession facially incriminating → confession’s language and PO testimony about it obvious redaction points to ∆ VI. Zerbst (1938) – Extends Powell to Non-Capital Federal Criminal Prosecutions . • must provide counsel early enough to make a difference − Hamilton v. co∆ didn’t testify • precedent o Bruton – 6th Amnd. etc. ∆ testified denying participation.

unless he was represented by counsel at his trial o non-felonies tried w/o jury aren’t necessarily less complicated counsel still may be needed − Scott v. has right to counsel o right to counsel = fundamental right o ∆ w/o counsel can’t have fair trial − professional Π s + ∆ s who can afford hire attys → counsel is NOT a luxury. Wainwright (1963) – Fundamental Right To Counsel Applies to States • b&e w/ intent to commit misdm. no racial issues) → deny request for counsel → self represented → convicted • 6th Amnd incorporated via 14th Amnd to states → indigent ∆ in state ct. Regardless of Classification Unless Represented by Counsel • Absent knowing and intelligent waiver. Counsel → Absence Would be Offensive to Common Ideas of Fairness • OVERRULED BY GIDEON V. misdemeanor or felony.• realistic recognition that average ∆ doesn’t have professional legal skill to protect self. (non-violent. WAINWRIGHT • non-capital cases only appt counsel when absence would be offensive to common ideas of fairness − Gideon v. IL (1979) – Actual Punishment v. to Get Appted. Hamlin (1972) – Absent K/I Waiver. esp. no person may be imprisoned for any offense. w/ professional prosecutor − Betts v. NO ONE Can be Imprisoned for an Crime. max penalty was $500 fine and/or 1y jail • 6th and 14th Amnd require only that NO indigent criminal ∆ be sentenced to a term of imprisonment unless the state has afforded him the right to assistance of appointed counsel in his defense o right to counsel based on actual punishment o no jail → no right to counsel • dissent – authorized punishment theory better o focus on potential penalty . it’s a necessity − Argersinger v. Brady (1942) – Must Have Special Circs. Authorized Punishment to Determine Right to Counsel • convicted theft fined $50 after bench trial. whether classified as petty.

requires indigent ∆ be offered appointed counsel unless that right has been intelligently and competently waived • uncounseled misdemeanor conviction. (1994) – Validly Uncounseled Misdemeanor CAN Be Used to Enhance Punishment for Subsequent Conviction • felony cases – in contrast to misd. CA – State CAN’T structure appeal process so that it denies an effective review to indigents while permitting it to those w/ $$$ − Douglas v. or U. U. CAN be used to enhance punishment at subsequent conviction − AL v. S. S. so can AL • NO suspended sentence that may end up in actual deprivation of person's liberty w/o representation in prosecution for crime charged o Counsel on Appeal and Other Forms of Assistance − Griffin v. o no administration problems – know before trial whether counsel required o constitutional rights can’t be based on state budget − Nichols v. Shelton (2002) • unrepresented misdemeanor assault conviction max 1y punishment → suspended prison sentence for 2y unsupervised probation • 6th Amnd prohibits activation of a suspended sentence upon ∆ ’s probation violation → incarceration for uncounseled underlying offense deprives ∆ ’s liberty o actual imprisonment rule o NO person can be imprisoned for any uncounseled offense o other states can pay for it. CA – State must provide counsel to indigent ∆ on appeal regardless of TC’s view that counsel would be useful/useless − Ross v. S. charges – Const.Ct.o better predictor of stigma resulting from conviction o always used by S.? • DP DOESN’T require state to provide counsel for discretionary appeal to St.Ct.Ct.Ct.S.S. o differences between trial and appeal: ∆ initiates appeal + ∆ ’s atty attacks rather than protects . valid due to absence of imposition of prison term. Moffitt (1974) – State NOT Required to Provide Indigent ∆ s Counsel for Discretionary Appeals • represented @ trial and immediate appeal as of right → counsel required for discretionary appeals to St.

S.Ct.• EP DOESN’T require state to provide free counsel on discretionary appeal to St.S.’s standard for granting or denying review was not whether there had been a correct adjudication of guilt • practice only unfair if indigents are singled out and denied meaningful access to appeals − Evitts v. and present defense + ∆ must have access to psych expertise if future dangerousness is relevant as an aggravating factor in capital sentencing o Critical Stage − Coleman v. measures insufficient to meet state interests → imprison − Ake v. a brief on his behalf in CoA setting forth his claims of error. at very least. prep. or U. McCollom (1976) – statute providing free transcript to indigent ∆ s for habeas corpus only if TC certifies claim isn’t frivolous and transcript is necessary constitutional • could have appealed directly and got free transcript automatically → chose not to too bad − Williams v. GA (1983) – CAN’T Deprive Probationer of Freedom Based Solely on Inability to Pay Fine at No Fault of ∆ ’s • in probation revocation proceedings ct must determine reasons for failure to pay fine: o o fail w/o making bona fide efforts to legally obtain $$$ → revoke probation fail after making sufficient efforts to legally obtain $$$ → consider alternative punishments − only AFTER alt. state must provide competent psych for eval. where: o ∆ would have. Short (1971) – statute CAN’T convert fine into jail where ∆ unable to pay fine • basically would be punishing people who couldn’t pay fine w/ jail but people who could pay convicted of same sentence only got fine − Bearden v. unrepresented ∆ s on appeal face same problems as @ trial − U.Ct. v. OK (1985) – when sanity @ time of crime is a significant factor in trial. and usually CoA opinion o S. IL (1970) – statute CAN’T increase max jail sentence if ∆ failed to pay fine when ∆ didn’t pay b/c indigent − Tate v. S. AL (1970) – right to counsel applies at all critical stages of a criminal prosecution . a trial transcript.Ct. Lucey (1985) – right to counsel includes right to have effective counsel.S.

Washington (1984) – Successful Ineffective Assistance of Counsel Requires: Deficient Performance AND Prejudice • against counsel’s advice ∆ confessed to all charges and waived right to advisory jury in capital sentencing phase . timely and colorable claim that hasn’t committed violation or substantial reasons justify or mitigate violation making revocation inappropriate) o habeas corpus/collateral attack proceedings − right to be heard @ prison disciplinary hearings adversely effecting liberty interest. Richardson – if right to counsel is guaranteed → must be competent counsel − prohibited interferences w/ atty-client relationship • conference during over night recess between direct and cross-x • testifying ∆ or when • closing statement in non-jury trial − old standard: mockery of justice ineffective only if trial reduced to farce/charade − new standard: consul must possess and exercise legal competence customarily found in JD • legitimization of plea bargaining • restricted habeas − Strickland v. but not necessarily counsel • Effective Assistance of Counsel o Meaning of Effective Assistance − McMann v.• criminal prosecution begins when adversary judicial proceedings begin (initial appearance or any formal charging process) – final sentence determination by TC • “critical stage” = any formal interaction between ∆ and Π that could adversely effect ∆ ’s ability to effectively exercise legal rights and any informal proceeding that is designed or likely to elicit incriminating info o preliminary hearings o initial appearance o arraignment o warrant execution o post-sentencing o parole revocation (unless special circs.

didn’t cross-x medical experts • defective counsel to reverse conviction or death sentence must show: o o deficient performance in an objective sense AND prejudice resulting from deficient representation sufficient to deny fair trial − must show reasonable probability that but for counsel’s errors result would have been different • challenge death sentence: reasonable probability that absent errors sentence would have determined balance of aggravating factors and mitigating factors wouldn’t warrant CP • challenge conviction: reasonable probability that absent errors factfinder would have had reasonable doubt re: guilt • effective counsel → reasonable strategic decisions based on info and resources available o ↑ aggravating circs. doesn’t request presentence report which would show more bad evidence. Taylor • counsel ineffective when o didn’t investigate abusive past based on error in interpreting law . Cronic) o Bell v. o omitted evidence wouldn’t change result and actually may have been more harmful • no showing of prejudice − prejudice presumed when • actual or constructive denial of counsel • certain kinds of state interference • counsel failed to function as adversary (U.• counsel decided not to present evidence re: background. character.S. v. excluded rap sheet. Cone – ∆ ’s counsel fails to call witnesses and waives closing argument @ sentencing hearing doesn’t fail as an adversary − Cronic claims rare • counsel conflict of interest − Williams v. emotional state.

. felt remorse.S. and. prior cooperation w/ police. ∆ must show that there is reasonable probability that. Lockhart (1985) – to satisfy prejudice. Whiteside (1986) • reasonable for atty to dissuade/threaten consequences for client for perjury • NO prejudice no claim that result would have been different if ∆ lied under oaht o if conflict between ∆ and counsel’s ethical obligations = prejudice all convictions would be suspect if sought to get acquitted by illegal means − Glover v. he would NOT have pleaded guilty and would have instead insisted on going to trial − Nix v. character testimony from prison officials: least likely to be violent or dangerous. borderline MR. Beard (2005) • ineffective assistance → ∆ counsel failure to examine file on ∆ ’s prior conviction for rape and assault at sentencing phase of capital murder trial when o knew Π seeking CP by proving ∆ had a significant history of felony convictions indicating the use or threat of violence. an aggravator under state law. U. abused as child. but for counsel’s errors. ∆ went to school and thrived in structured environment • prejudice o fact that: ∆ turned self in and cooperated w/ police.o didn’t intro evidence borderline MR. – prejudice when an erroneous sentencing calculation would have been corrected on appeal if appeal filed on time − Rompilla v. violent behavior result of compulsive reaction could have influenced jury’s decision re: moral culpability o mitigating evidence unrelated to dangerousness may affect jury’s sentencing even w/o undermining or rebutting Π ’s case − Roe v. Fores-Ortega (2000) • counsel ineffective if doesn’t consult w/ client when reason to think o rational ∆ would want to appeal o this particular ∆ reasonably demonstrated to counsel interest in appealing • when failure to consult deprives ∆ of right to appeal prejudice presumed if ∆ shows reasonable probability that but for counsel’s deficient failure to consult re: appeal he would have timely appealed − Hill v. further.

CoA of CA (2000) – NO right to be pro se ∆ on appeal • ↑ Π interest in preserving integrity and efficiency of legal system v. ↓ ∆ ’s interest in self-representation − People v. Reason • standard to waive counsel: . Constitutional Right to Conduct Own Defense • preliminarily allowed to defend self → TC questioned about hearsay and juror challenged and decided ∆ didn’t make K/I waiver → appt public defender • state CAN’T force representation when ∆ doesn’t want it o CL rule: no crim ∆ can have counsel forced upon him against will o if ∆ doesn’t want counsel → NOT going to be helpful and possibly harmful • to make KIV waiver should know risks and dangers of self-representation: o clear waiver o literate o competent o voluntary o understand risks o knew some rules still applied o don’t care didn’t know legal rules − Martinez v. and would emphasize his violent character by introducing a transcript of the rape victim's testimony given in the earlier trial • prejudice → @ sentencing phase in capital murder trial ∆ counsel’s failure to look at file containing potential mitigating factors.o knew that Π would attempt to establish this history by proving ∆ ’s prior conviction for rape and assault. CA (1975) – State CAN’T Force Counsel on ∆ When ∆ Insists on Defending Self. despite 9y school functioning @ 3rd grade level). incl. that was very different from anything else ∆ heard • Implications of Right to Counsel o Right to Proceed Pro Se − Faretta v. info about childhood (poverty) and mental health (schizophrenia and other disorders.

o ∆ has sufficient present ability to consult w/ atty w/ reasonable degree of rational understanding and a rational and factual understanding of proceedings against him o KIV waiver − McKaskle v. as long as ∆ retains control over his defense • right of self-representation is not violated by standby counsel unless: o substantially interferes w/ ∆ ’s significant tactial decisions o assumes control over examination of witnesses o speaks for ∆ on material issues against wishes o otherwise destroys jury’s perception that ∆ is representing self − Anders v. GA – CP w/o guidelines for decision making unconstitutional Gregg v. Wiggins (1984) – Occasional Unsolicited Assistance by Standby Counsel does NOT violate 6th Amnd. and don't believe meritorious grounds for appeal and request to be relieved as counsel. with few or very flexible guidelines − aka discretionary sentencing o presumptive sentencing – a statutory scheme that prescribes a sentence or range of sentences for an offense but allows the court some flexibility in atypical cases o o o Furman v. file a brief that says: indicate review record etc. GA – statutory guided decision for CP constitutional Lockett v. − aka determinate sentencing. appt standby counsel • mere occasionally unsolicited assistance by standby counsel DOESN’T violate 6th Amnd. must be considered by jury . • SENTENCING Introduction o mandatory sentencing – statutorily specified penalty that automatically follows a conviction for the offense. Ohio – ALL relevant mitigating circs. as long as ∆ Retains Control over his Defense • couldn’t decide whether wanted counsel → ct. often with a minimum mandatory term. CA – if lawyer sees no appealable issues. fixed sentencing o indeterminate sentencing – sentencing that is left up to the court. ID issues that might be arguable on appeal (non-frivolous) to assist appellate court VII.

but CAN’T contain opinion that ∆ should get CP o Substantive Limits − Ewing v. resentencing judge after jury sentence. re-sentencing after vacated guilty plea − can victim impact statements as long as not to prejudicial to violate FRE or DP. CA (2003) • 3 strikes law → ∆ long crim. harshness of penalty sentences in same JD sentences for same crime in other JDs . Helm – unconstitutional to sentence life w/o parole for 7th nonviolent felony − 3 factors for proportionality • • • gravity of offense vs. Davis – constitutional sentence to 2 20y consecutive sentences for possessing and distributing pot o Solem v. 2nd jury trial w/ jury sentence. Estelle – constitutional to sentence 3x offender to life w/o parole − fed. even if ∆ plead guilty − can consider racial motivation for crime BUT NOT abstract beliefs unless directly relevant − can’t ↑ sentence on retrial b/c ∆ appealed → TC must list legit specific reasons: conduct after sentencing. convictions for charges pending @ sentencing • limitations → n/a to new trial for misdemeanor. cts should be reluctant to review legislatively mandated sentences → successful challenges should be rare o Hutto v.o McClesky v. history of theft. Kemp – racial discrepancies re: CP inevitable result of necessary discretion → NOT systematic defect o Considerations − can’t ↑ sentence based on prior felony convictions that violated 6th Amnd (counsel) − can ↑ sentence based on uncounseled misdemeanor conviction when no 6th Amnd right to appt counsel − ∆ perjury @ trial admissible + doesn’t unconstitutionally burden ∆ ’s right to testify − can’t consider ∆ ’s choice not to testify at sentencing. drug possession → currently convicted felony grand theft for stealing $1200 golf clubs → sentenced 25-life • precedent o Rummle v. battery.

MI – life w/o parole constitutional for possessing 672g cocaine − − proportionality only considered for CP 4 principles • • • • primacy of legislature legit peneological schemes nature of federal system objective factors − 8th Amdn. morbid sexuality. doesn’t require strict proportionality ONLY no grossly disproportionate • NOT grossly proportionate → constitutional when justified by state’s public safety interest in incapacitating and deterring recidivist felons and amply supported by ∆ ’s long and serious criminal record o reflects rational legislative judgment entitled to deference o reasonable basis to believe increased sentences advance CJ goals − U.o Harmelin v.S. no standard of proof: prior [uncharged. Bajakajian (1998) • convicted of carrying $375K cash out of country w/o reporting → Π forfeit all monies • unconstitutional sentence gravity of the crime v. punishment is grossly disproportionate o underlying conduct permitted o no other criminal involvement o no articulable correlation to any gov’t injury • Applicability of Rules of Constitutional Criminal Procedure o NOT all rights apply to both guilt-innocence phase and discretionary sentencing phase − right to counsel − confrontation o Williams v. NY (1949) – Sentencing Judge NOT Limited to Info Presented at Trial − ∆ convicted 1std murder → jury recommends life → TC: death based on info from probation office that wasn’t subject to cross-x. v. menace to society. unconvicted] burglaries. personal belief of guilt .

PA (1986) – Sentencing Factor Only Needs to be Proved by Preponderance of the Evidence − 4 consolidated cases: aggravated assault. AZ (1990) – AZ statute that gives TC responsibility to find aggravating circumstances for CP constitutional − OVERRULED BY APPRENDI . voluntary manslaughter. robbery w/ gun TC rejected state mandatory minimum sentence rule if judge finds (PoE) ∆ visibly possessed gun @ time of crime − NO DP violation → visible possession of firearm doesn’t need to be proved by at least clear and convincing evidence before it can be used to impose mandatory minimum sentencing under stat.− sentencing complies w/ DP requirements b/c sentencing judge has wide discretion in sources and types of info used to assist in determining kind and extent of punishment w/i legal limits • sentencing judges NOT limited to info presented @ trial • judge considered evidence presented @ trial and additional information from unconfronted witnesses • different evidentiary standards for guilt and sentencing o guilt –limited evidence to not waste time o sentencing – need to have all info possible to have punishment fit ∆ . FL (1977) – modern CP sentencing must be guided by statutory aggravating circumstances → DP violation when sentence was partially based on info had no opportunity to explain or deny o o In re: Winship (1970) –DP protects ∆ against conviction except upon proof BRD of every fact necessary to constitute crime with which he is charged o Mullaney v. not just crime Gardiner v. when it is considered to be a sentencing factor rather than an element • PoE standard sufficient • legislative intent to be sentencing factor • doesn’t change definition of any offense or add element → just states exact weight having gun during crime should be given in sentencing o Walton v. NY (1977) – a defense that negates blameworthy but doesn't negate an element of the crime is affirmative defense and ∆ has burden of proof o McMillan v. Wilbur (1975) – ∆ CAN’T have burden to disprove an element of the crime by calling it affirmative defense o Patterson v.

(1999) – Any Fact (Except Prior Conviction) that ↑ Max Penalty Must be Indicted.− 6th Amnd doesn’t require specific findings to support CP to be made by jury − aggravating circs.S. U. (1995) – can consider uncharged conduct for enhanced sentencing and later prosecute for same conduct − U. not separate offense or penalty → GUIDE • [not] finding aggravating circ doesn’t convict or acquit ∆ o Mandatory Sentencing and Const. 10y) → judge determined hate crime (max. Sentencing Guidelines as a basis for increasing sentence (esp. U.S. Jury Determination BRD of ALL Elements of Crime • jury convicted possessing gun (stat.S.S. (1998) – fed. Watts (1997) – can use previous conduct for which ∆ has been acquitted to enhance sentence − Edwards v. Submitted to Jury.S. crack. U. (1989) – Sentencing Reform Act constitutional b/c although Congress CAN’T generally delegate its legislative power to another Branch. 20y) → ∆ sentenced to 12y • ∆ entitled to jury determination that he is guilty of every element of crime with which he is charged. − Mistretta v. even if the jury might have convicted based on one drug • regardless of jury’s actual or assumed belief about conspiracy TC required to determine whether controlled substances at issue – and how much – consisted of cocaine. v. max. NOT judicial fact-finding . NJ (2000) – ∆ Entitled to Pre-Trial Notice. U. and Proved BRD • DP and 6th Amnd require any fact (except prior conviction) that ↑ max penalty to be o indicted o submitted to jury o proved BRD − Apprendi v. (1998) – factors in Fed. judges can sentence someone convicted of taking part in a drug conspiracy based on a finding that two illegal drugs were involved. or both − Almendarez-Torrez v. prior convictions) ≠ element of a new crime − Jones v.S. U. the nondelegation doctrine does not prevent Congress from obtaining assistance from coordinate Branches − Witte v. beyond reasonable doubt o jury has to find hate crime enhancement.

Booker (2005) – FSA Incompatible w/ 6th Amnd. sentencing guideline = 49-53m unless substantial and compelling reason justifying exceptional sentence → victim testimony judge sentences 90m • invalid sentence – when ∆ sentenced to ↑ stat. U. max w/o challenged fact finding not submitted to jury − Harris v. AZ (2002) – aggravating circs. w/i sentencing range political system may channel judicial discretion − Blakely v. one of several specified facts (Ring) or any aggravating fact (here) jury’s verdict alone doesn’t authorize that sentence → judge only acquires authority upon finding some additional fact o jury isn’t in sufficient control – as founders intended – if they only make preliminary determinations of some criminal behavior and judge decides rest − U.S.o question – does the required finding ↑ punishment beyond that authorized by jury’s guilty verdict? − Ring v. max b/c of a disputed fact founders would require Π to prove that fact through jury o whether judge’s authority to impose an enhanced sentence depends on a specified fact (Apprendi). Requirements → Severed and Excised • 2 consolidated drug cases: o #1 Guideline sentence of 210-260m → @ sentencing judge finds by PoE possessed add’l drugs increasing sentence to 360m-life → received 360m o #2 Guideline sentence of 78m → @ sentencing judge finds by PoE actually drug ring leader increasing max sentence to 16 years → sentenced 78m → Π appeal • 6th Amnd requirement that any fact –except prior conviction – needed to support a sentence exceeding max authorized by facts in guilty plea or jury verdict must be admitted by ∆ or proved to jury BRD incompatible w/ Federal Sentencing Act.S. (2002) – McMillan Re-Affirmed • Apprendi: ↑ max. . = elements of crime → must be found BRD by jury • unconstitutional when judge imposes a sentence ↑ stat. Max Based on Disputed Fact Not Submitted to Jury • plea agreement 2ndd kidnapping max 10y → St. sentence = element • McMillan: ↑ mandatory minimum (but not beyond max) ≠ element • together: facts setting up outer limits of sentence and the judicial power to impose it are elements. WA (2004) – CAN’T Sentence ↑ Stat. v.

which called for promulgation of federal sentencing guidelines and made such guidelines mandatory o guidelines same as Blakely – both mandatory o ↑ sentencing range ↑ judge power ↓ jury power judge decides upper limits of sentencing based on facts not required to be brought to jury or proved by more than preponderance • provisions that made guidelines mandatory and set standard of review severed and excised o Congress would have preferred severing rather than total invalidation o appellate standard is reasonableness .

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