I.

INTRO
A. Crim pro focuses on how we will arrive at a punishment for proscribe
behavior.

B. Crim pro’s investigatory purpose focuses on your rights when dealing

with law enforcement

C. Crim pro’s adjudicatory purpose focuses on your rights with respect to

lawyers and the responsibilities of lawyers in the criminal proceeding.

D. Process is important for consistently reliable just outcomes.

E. If it’s a state actor, mention 5th Am due process clause incorporated by 14th
Am.

F. The only clauses from the Bill of Rights that aren’t incorporated are 8th Am
excessive fines and 5th Am grand jury.

II. STAGES OF THE CRIM JUSTICE PROCESS

A. Pre-Arrest Investigation: When time is of the essence, police may have to
make their own observations or use the account of others at the scene to gather
the minimal amount of information necessary to execute an arrest. For on-the
scene arrests, majority of the investigation will occur after the suspect is already
in custody. Such investigations may include witness and victim interviews,
interrogation of the suspect, identification procedures, undercover follow-up
investigations, searches, and issuance of evidence subpoenas. In the remainder of
cases, a lengthy investigation will occur before a suspect is arrested. Police will
use their investigative tools such as search warrants, interviews, informants, and
evidence collection, to seek formal charges against the suspect before they
execute an arrest. A magistrate may then issue an arrest warrant, together with a
formal complaint filed by the prosecution, or the prosecution will obtain an
arrest warrant in conjunction with a GJ indictment.
B. Arrest: Once a suspect is taken into custody, he begins his journey
through the crim justice process. If the police did not use an arrest warrant, they
must file an affidavit with the court setting forth the PC for the arrest and getting
a complaint to hold the Δ for further proceedings. Even if the police did use an
arrest warrant, the Δ has the right to appear before a judge, be informed of his
constitutional rights, be advised of the charges against him, and be assigned
counsel. For some minor offenses, a suspect may merely receive a citation and
not be formally arrested. A citation or summons requires that the suspect appear
at a later date to answer the charges against him. If a suspect is arrested, he is
taken to the police station for booking. Once his picture and background
information has been taken, the suspect is placed in a holding facility. Depending
on the offense, the suspect may be able to post bail on an approved bail schedule.
If he posts bail, he will be ordered to appear in court on a specific date for further
proceedings. If he does not post bail, he will be held in jail until he is released by
the court.

C. Filing the Complaint: For the police to be able to hold a suspect after
arrest, the prosecution must file charges. Once it does so, it takes over the
decision-making process from the police, and has discretion as to which charges
to file. If the suspect has not been indicted, the prosecutor will use an initial
complaint to file charges against the suspect. The complaint must be supported
by a showing of PC based on a sworn affidavit by law enforcement officers.

D. Gerstein Review: The magistrate judge must review the prosecution’s

complaint and supporting affidavit to determine whether there is PC supporting
the initial charges against the Δ. (Gerstein v. Pugh) The magistrate’s review is
done ex parte and is based on the filings alone—no evidentiary hearing is
required. Often the court will conduct a Gerstein Review at the time of the Δ’s
first appearance as long as the first appearance is within 48 hours of the Δ’s
arrest.

E. First Appearance/ Arraignment on Complaint: Ordinarily, the first

appearance, also called “initial arraignment” or “preliminary arraignment,”
depending on the jurisdiction, will occur within 48 hours of the Δ’s arrest. This
proceeding is usually a brief one and is merely a minimal check to ensure that a
basis for the Δ’s arrest exists.
F. Grand Jury (GJ) or Preliminary Hearing (Prelim): Before a Δ is required to
stand trial, there must be another screening of the cases that establishes the
charges the Δ will face at trial. The 5th Am requires that for all federal felonies, a
Δ is entitled to GJ indictment. This serves as a minimal check on the prosecutor’s
decision to bring charges. If there is PC, the GJ issues an indictment or “true bill.”
The indictment sets forth the charges the Δ will face at trial. If the GJ does not
want to indict, it issues a “no bill.” Another mechanism to screen cases before
trial is the prelim. A prelim is different than a GJ. No jury is present in a prelim.
The judge presiding over the hearing decides whether there is PC to “bind the
case over” for trial.

G. Arraignment on Indictment or Information: Once an indictment or

information is filed, the Δ will be arraigned on those charges. At the arraignment,
the Δ will typically be asked to enter a plea of guilty or not guilty, be advised
against the charges against him, and be assigned counsel if counsel has not yet
been assigned. The court will then assign a trial date. The trial date must comply
with constitutional standards for a speedy trial and any applicable Speedy Trial
Acts.

H. Discovery: Discovery is the process by which the parties seek to examine

the evidence that the other party is likely to use at trial. Statutes and procedural
rules often govern discovery. Δ’s also have a due process right to exculpatory
evidence and evidence that may impeach the prosecution’s witnesses. In the
federal system, discovery of witness statements is covered by separate statutes.
In state courts, comprehensive discovery statutes often cover inculpatory and
exculpatory evidence, including witness statements.

I. Pretrial Motions: The parties will file a variety of pretrial motions. The
defense will seek to suppress evidence illegally obtained by the prosecution,
move to change venue, and seek dismissal for speedy trial violations or problems
with the charges. The prosecution may file pretrial motions in limine to get
pretrial rulings on key evidentiary issues in the case. Pretrial motions help the
parties define the scope of their own cases, and to assess the relative strength of
the other side’s case.
J. Plea Bargaining and Guilty Pleas: More than 90% of all criminal cases
never go to trial. Rather, the vast majority of cases end with a guilty or nolo
contendere plea. During the plea bargaining process, prosecutors may choose to
reduce the charges or sentence exposure for a Δ in exchange for the Δ’s guilty
plea, and oftentimes, the Δ’s cooperation. If a Δ decides to plead guilty, a formal
hearing is held for the Δ to enter his plea. A guilty plea is both an admission that
the Δ committed the crime, and a waiver of all the rights a Δ would have had he
proceeded to trial. At a guilty plea hearing, the Δ will be advised of his right to
counsel, right to confront witnesses, right to present evidence, right to a jury, and
privilege against self-incrimination. If the Δ waives these rights, the court will
ask for a factual basis of the plea. Either the prosecution or defense may provide
the recitation necessary to establish that there is a basis for the plea. The court
will also determine whether the plea is voluntary, and the nature of any
inducements for the plea. Finally the court will advise the Δ of the consequences
of pleading guilty. If the Δ’s guilty plea is knowing and voluntary, the court will
accept the plea. A nolo contendere has the same effect, in a criminal trial, as a
guilty plea. However, unlike a guilty plea, which serves as an admission for a
civil case that the Δ is responsible, a nolo contendere has no impact on a
companion civil case.

K. Trial: If a Δ does not plead guilty, the case proceeds to trial. A trial may be
a bench trial or a jury trial. If the case is going to be decided by a judge alone,
both sides must waive the right to a jury trial. The right to jury trial is guaranteed
by the 6th Am for all serious offenses, which the SC has defined as offenses that
carry a possible sentence of more than 6 months in custody. It is the jury’s jo to
listen to all of the evidence, consider the court’s instructions, and decide whether
the Δ is guilty beyond a reasonable doubt. If the jury is not able to reach a
decision, it constitutes a hung jury, and the court will declare a mistrial. In
general, the prosecution can retry a Δ after a hung jury.
 L. Sentencing: If the Δ is convicted, he will be sentenced by the court,
ordinarily at a separate sentencing hearing. At the sentencing hearing, the Δ has
the opportunity to address the court. In some jurisdictions, judges have broad
discretion in imposing a sentence. In other jurisdictions, sentencing guidelines
and mandatory sentences control a judge’s sentence. If the judge’s sentence must
be based on specific factual findings other than a Δ’s prior criminal record, the
trier of fact must find existence of those facts beyond a reasonable doubt if they
will increase the Δ’s sentence beyond the presumptive sentence for that crime.

M. Appeals and Habeas Corpus: A Δ is entitled to challenge his conviction on

direct appeal or through collateral proceedings known as habeas corpus
proceedings. On direct appeal, the Δ may challenge errors made by the court or
prosecution at trial. Unless otherwise provided by statute, a Δ does not have the
right to review by the state’s high court. On appeal, the burden shifts to the Δ to
demonstrate how he did not receive a fair trial, or that there was insufficient
evidence to support the jury’s verdict. After all direct appeals are completed, a Δ
may also challenge constitutional violations in his case through a habeas corpus
petition. Habeas corpus petitions are suits that allege that the Δ is being held
unconstitutionally. Both state and federal courts have procedures for collateral
review; in federal court it is via a petition for a writ of habeas corpus. If a Δ
succeeds on appeal or with a habeas corpus petition, the ordinary remedy is
retrial. However, if the appellate court finds that there was insufficient evidence
to support the verdict, the Δ may not be retried because of double jeopardy
principles.

III. INITIATING PROSECUTION

Initially police officers will use their discretion to decide when to arrest a suspect.
Initial charges are filed in a complaint or information. The complaint must be
supported by an affidavit that sets forth the evidence supporting the charges.
Assuming that there is PC, prosecutors have enormous discretion in deciding
what charges to bring and against whom. As long as there is PC to support the
charges, prosecutors can decide how many counts to bring, the severity of the
crime to charge, and which suspects to use as witnesses and which to charge as
Δs. If judges disagree with a prosecutor’s charging decision, they can decide to
dismiss charges, but they cannot order prosecutors to bring other charges.

A. THE CHARGING DECISION

1. The charging decision is particularly important b/c of the discretion

the prosecutor has.

2. Several factors influence the decision of whether to prosecute a

case.

a) First, there are the economic realities.

b) Second, prosecutors must assess which prosecutions are

likely to bring the greatest benefit to the community.

c) Third, prosecutors must evaluate the merits and strengths of

each individual case.

d) Prosecutors will also evaluate the background of individual

Δs before deciding whether to prosecute a case.

e) Finally, prosecutors should factor in the overall impact of

their decision to prosecute or drop a case. This includes the impact
on the victims, their families, law enforcement, and all members of
the broader community.

B. LIMITS ON PROSECUTORIAL DISCRETION

Although prosecutors enjoy broad discretion in charging cases, there are

statutory, administrative, ethical, and constitutional limits on
prosecutorial discretion.
1. Statutory and Administrative Limits

a) Prosecutors can only charge conduct that the legislature has

designated as a crime.

b) A crime may be charged by state prosecutors, federal

prosecutors or both. Federal double jeopardy law does not bar
separate sovereigns from charging the same offense.

c) FRCP allows for the prosecution of criminal contempt, but it

does not allow the victim to be the prosecutor. A private attorney
should be appointed to prosecute.

d) Prosecutors may adopt guidelines for their decisions to

prosecute. However, violation of these internal guidelines does not
afford the Δ grounds to contest the charges. They do not create
independent rights for the Δ.

2. Ethical Limits

a) The SC has repeatedly recognized that prosecutors have

special ethical responsibilities b/c of the power they wield.

b) “The responsibility of a public prosecutor differs from that

of the usual advocate; his duty is to seek justice, not merely to
convict.” –ABA Model Code of Professional Responsibility

3. Constitutional Limits

a) Prosecutors cannot use unconstitutional motives to charge a

Δ.

b) A Δ who is prosecuted b/c of his race, religion or other

classification, in violation of the 14th Am’s Equal Protection clause,
can move to dismiss for selective or discriminatory enforcement.

c) A Δ who is prosecuted in retaliation for his exercise of a

constitutional right can move to dismiss for vindictive prosecution.

d) DueProcess = fundamental fairness

e) The Equal Protection clause is in the 14th Am; there is none in
the 5th. The protections are subsumed in the 5th Am as it concerns
federal actors.

(1) If there is a state actor, 14th Am gives protection

through the Equal Protection clause.

(2) If there is a federal actor, the 5th Am gives protection

through the Due Process clause.

f) Selective or Discriminatory Enforcement

(1) Selective prosecution claims are judges according to

ordinary equal protection standards. –Wayte v. U.S.

(2) These standards require petitioner to show both that

the passive enforcement system had a discriminatory effect
and that it was motivated by a discriminatory purpose. –
Wayte v. U.S. ***Analysis Test***

(3) Must show that people who were similarly situated

were not prosecuted.

(4) A selective-prosecution claim is not a defense on the

merits to the criminal charge itself, but an independent
assertion that the prosecutor has brought the charge for
reasons forbidden by the constitution. –U.S. v. Armstrong

(5) A Δ may demonstrate that the administration of a

criminal law is “directed so exclusively against a particular
class of persons…w/ a mind so unequal and oppressive”
that the system of prosecution amounts to “a practical
denial” of equal protection of the law.—U.S. v. Armstrong

(6) Δ must present “clear evidence to the contrary.” –U.S.

v. Armstrong
 (7) If discovery is ordered, the gov’t must assemble from
its own files documents which might corroborate or refute
the Δ’s claim. –U.S. v. Armstrong

(8) The required threshold—a credible showing of

different treatment of similarly situated persons. –U.S. v.
Armstrong

(9) The justifications for a rigorous standard for the

elements of a selective-prosecution claim thus require a
correspondingly rigorous standard for discovery in aid of
such a claim. –U.S. v. Armstrong

g) Vindictive Prosecution

(1) The Due Process clause is not offended by all

possibilities of increased punishment upon retrial after
appeal, but only by those that pose a realistic likelihood of
“vindictiveness.” –Blackledge v. Perry

(2) Since the fear of such vindictiveness may

unconstitutionally deter a Δ’s exercise of the right to appeal
or collaterally attack his first conviction, due process also
requires that a Δ be freed of apprehension of such a
retaliatory motivation on the part of the sentencing judge. –
Blackledge v. Perry

(3) A person convicted of an offense is entitled to pursue

his statutory right to a trial de novo, without apprehension
that the state will retaliate by substituting a more serious
charge for the original one, thus subjecting him to a
significantly increased potential period of incarceration. –
Blackledge v. Perry

(4) There is no violation of a Δ’s right when a prosecutor

threatens to add more charges during the plea bargain
negotiations.
 (5) A claim of vindictiveness is easily rebutted if
prosecutors can show that new evidence or a reevaluation of
the case justified the imposition of the new charges.

(6) Blackledge does not apply when a prosecutor

escalates charges following a mistrial or files additional
charges after an acquittal.

C. FORMAL CHARGING MECHANISMS

American courts rely on 2 different mechanisms to screen cases before they are
set for trial and to formalize the charges the Δ will face. Both the GJ and prelim
are designed to protect citizens from unjust prosecutors.

1. The Grand Jury

a) The right to a GJ was provided by the 5th Am. It provides

that, except in military cases, “no person shall be held to answer for
a capital, or otherwise infamous crime, unless on a presentment or
indictment of a GJ.”

b) GJ indictments are still the primary mechanism for bringing

federal charges.

c) A crime is “infamous” if it can result in imprisonment in a

penitentiary or hard labor.

d) Federal felony charges are brought by way of indictment.

e) Misdemeanor charges can be filed directly by the prosecutor

by information.

f) The right to a GJ indictment only applies to federal

prosecutions.

g) The GJ has the power to subpoena witnesses and

documents.

h) Pursuant to FRCP 6(a), 16-23 sit on a GJ.

 i) GJ typically serve for 6 months, but their service can extend
for as long as 18 months.

j) If a GJ refuses to indict, prosecutors can represent the same

case to another GJ.

k) A Δ can waive GJ indictment and opt to have the

prosecution file formal charges by information.

l) The purpose of GJ is to provide a buffer b/w citizens and

gov’t.

m) The GJ performance of its twin historical responsibilities, i.e.

bringing to trial those who may be justly accused and shielding the
innocent from unfounded accusation and prosecution. –U.S. v.
Williams

(1) Sword function-investigative

(2) Shield function- buffer/screening

n) GJ has the subpoena power not prosecutor.

2. Operation of the GJ

a) GJ operations are an ex parte process.

(1) Only the prosecutor is represented in GJ proceedings.

(2) The prosecutor calls and examines witnesses before

the GJ.

(3) Then, if the prosecutor wants to secure an indictment,

the prosecutor presents a typed indictment to the GJ,
instructs them on the applicable law, and steps out when the
GJ is asked to deliberate to determine whether there is PC to
support the charges.

(4) Neither Δ nor his counsel has the right to be present

in the GJ.
 b) Individuals who are the focus of a GJ investigation are
typically referred to as “targets” of the GJ.

c) A subject is also a person who may be charged with a crime,

but is not as likely to be indicted as the identified “target” of the
investigation.

d) Prosecutors are not required to tell individuals that they are

the target or subject of a GJ investigation.

e) The testimony of a GJ witness is not discoverable unless that

witness testifies at trial or the requesting party shows a
particularized need for the release of the transcript.

f) Violations of GJ procedures are not grounds for dismissing

an indictment absent a showing of prejudice.

3. Screening Function of the GJ

a) An indictment returned by a legally constituted and

unbiased GJ, like an information drawn by the prosecutor, if valid
on its face, is enough to call for trial of the charge on the merits. The
5th Am requires nothing more. –Costello v. U.S. (allows hearsay)

b) The GJ is not an adversarial proceeding. It is a modest

screening mechanism to ensure that cases that do proceed to trial
are supported by PC.

c) Bank of Nova Scotia v. U.S. makes clear that the supervisory

power can be used to dismiss an indictment b/c of misconduct
before the GJ at least where that misconduct amounts to a violation
of one of those “few, clear rule s which were carefully drafted and
approved by this Court and by Congress to ensure the integrity of
the GJ’s functions.” –U.S. v. Williams

d) Review of facially valid indictments on such grounds

“would run counter to the whole history of the GJ in situation, and
neither justice nor the concept of a fair trial requires it.” –U.S. v.
Williams
4. Grand Jury Reforms

a) Calls for GJ reform generally go unheeded by Congress and

the SC.

5. Preliminary Hearing

a) Prelim formal purpose is determining PC.

b) It is also used as a discovery tool, trial strategies (mtn 2

suppress, impeachment, etc).

c) In federal court, prelims are governed by FRCP 5.1 and are

only used to hold a Δ until an indictment can be obtained.

d) After Gerstein hearing, there must be a detention hearing.

(1) If the Δ is in custody, there must be a prelim within 14

days.

(2) If the Δ is not in custody, there must be a prelim in 21

days.

e) States routinely rely on prelims in lieu of or in addition to GJ

proceedings.

f) Once the magistrate or judge finds PC, the Δ is” bound over”
for trial on charges filed by the prosecutor in an information.

g) Prelims are more akin to “mini-trials.”

(1) A judge presides over the prelim; it is an adversarial

process.

(2) The Δ has the right to be present and to be

represented by counsel.

h) If a magistrate refuses to bind over a Δ for trial, prosecutors

may present their case to the GJ or move to dismiss it and refile
before a different judge.
 i) Any errors at the prelim are generally considered harmless
once the Δ is tried and convicted.

j) A prelim can provide the means to preserve a witness’

testimony for trial by giving the Δ an opportunity to cross-examine
the witness.

k) An information is a charging document that is promulgated

by the prosecutor that in form usually looks like an indictment. It’s
used for misdemeanors or for someone who has waived
indictment.

D. SEVERANCE AND JOINDER

One of the decisions a prosecutor must make in deciding how to charge a case is
whether to join charges and Δs at trial. Prosecutors generally favor trying Δs
together. Joint trials generally serve the interests of justice by avoiding
inconsistent verdicts and enabling more accurate assessment of relative
culpability. There are also downsides to trying Δs together. Δs may be tainted by
the evidence against their coΔs.

1. FRCP 8 & 14

a) FRCP 8 & 14 govern the issues of joinder and severance of

crim cases in federal court.

b) Rule 8(a) permits the joinder of offenses that “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
plan or scheme.”

c) Rule 8(b) permits 2 or more Δs to be charged together if they

have participated in the same act or transaction, or in the same
serves of acts or transactions.

d) All Δs need not be charged in each count.

 e) Rule 14 provides relief from prejudicial joinder. “If the
joinder of offenses or Δs in an indictment, or information, or
consolidation for trial, appears to prejudice a Δ or the gov’t, the
court MAY order separate trials of counts, sever the Δs’ trials, or
provide any other relief that justice requires.”

f) Most times the relief provided by the court is a limiting

instruction.

2. Irreconcilable Conflicts and Bruton Problems

2 common grounds are offered in support of a Δ’s mtn 2 sever Δs who

have been joined for trial: (1) finger-pointing at trial by one Δ against
another and (2) introduction of confessions that implicate coΔs in a
manner that violates the coΔ’s right of confrontation. Generally, courts
will not sever a case unless the conflict b/w Δs is irreconcilable.

3. Conflicting Defenses

a) Mutually antagonistic defenses are not prejudicial per se.—

Zafiro v. U.S.

b) Rule 14 does not require severance even if prejudice is

shown; rather it leaves the tailoring of the relief to be granted, if
any, to the DC’s sound discretion.—Zafiro v. U.S.

c) When Δs have properly been joined under Rule 8(b), a DC

should grant a severance under Rule 14 only if there is a serious
risk that a joint trial would compromise a specific trial right of one
of the Δs, or prevent the jury from making a reliable judgment
about guilt or innocence.—Zafiro v. U.S.

d) Evidence that is probative of a Δ’s guilt but technically

admissible only against a coΔ also might present a risk of prejudice.
—Zafiro v. U.S.

e) It is well settled that Δs are not entitled to severance merely

b/c they may have a better chance of acquittal in separate trials.—
Zafiro v. U.S.
4. Bruton Problems

a) There are situations in which the introduction of a

confession by one Δ may implicate a coΔ and poses a Confrontation
Clause problem b/c the coΔ has not had an opportunity to cross-
examine the Δ on his confession. This is known as a Bruton
problem.

b) In such situations, either the prosecution must redact the

statement so that it does not implicate any coΔs or bring 2 separate
trials.

c) The basic premise of Delli Paoli was that it is “reasonably

possible for the jury to follow “sufficiently clear instructions to
disregard the confessor’s extrajudicial statement that jis coΔ
participated with him in committing the crime.—Bruton v. U.S.

d) But since Delli Paoli was decided this Court has effectively
repudiated its basic premise. “It is impossible realistically to
suppose that when the 12 good men and women have a Δ’s
confession in the privacy of the jury room, they will not use it to
implicate the coΔ.”—Bruton v. U.S.

e) Courts have had to fashion other alternatives to the Bruton

problem. Prosecutors have a few options:

(1) They can agree to separate trials for the Δs.

(2) They can try the Δs jointly but forgo use of the
confession.

(3) They can redact the confession to remove all reference

to the existence of a non-confessing Δ.

f) In redacting the confession, prosecutors must be careful to

ensure that a non-testifying coΔ’s confession still cannot be
construed as implicating the Δ.
 g) The rule that juries are presumed to follow their instructions
is a pragmatic one, rooted less in the absolute certitude that the
presumption is true than in the belief that it represents a reasonable
practical accommodation of the interests of the state and the Δ in
the crim justice process.—Richardson v. Marsh

h) The Confrontation Clause is not violated by the admission of

a non-testifying coΔ’s confession with a proper limiting instruction
when the confession is redacted to eliminate not only the Δ’s name,
but any reference to his or her existence.—Richardson v. Marsh

i) Redactions that simply replace a name with an obvious

blank space or a word such as “deleted” or a symbol or other
similarly obvious indications of alteration, however, leave
statements that, considered as a class, so closely resemble Bruton’s
un-redacted statements that, in our view, the law must require the
same result.

E. AMENDMENTS AND VARIANCES

1. Not all mistakes in the charges against a Δ will result in dismissal

of a case.

2. FRCP 7(c) does not require that formal, legal language be used in
an indictment. The indictment or information need only inform a Δ of the
charge the Δ must defend and provide sufficient detail that the Δ can raise
a double jeopardy objection to a future prosecution for the same offense.

3. A Δ may request a “bill of particulars” to ascertain more details

regarding the charges offense.

4. Δs may challenge indictments on “duplicity” grounds if they

charge 2 or more distinct offenses in a single count of the indictment.

5. Duplicity is not fatal to an indictment. The gov’t can correct this by

selecting a single basis on which it will try the case.
 6. Δs may also challenge an indictment b/c a single offense is charged
in multiple counts of an indictment—“multiplicity.”

a) Duplicity: multiple offenses in one count (i.e. murder,

robbery, and kidnapping in one count)

b) Multiplicity: same offense in multiple counts (violated a

statute in multiple ways i.e. agg. assault by using a deadly weapon
in count one and agg. assault by serious bodily harm in count two)

7. If there is a defect in an indictment, the prosecutor may seek to re-

present the case to the GJ for a “superseding indictment.”

8. There is no limit on the number of times a prosecutor can return to

the GJ for a superseding indictment.

9. Superseding indictments are typically used to add new Δs or

charges to an indictment or to correct errors before trial.

10. Indictments can also be amended to correct obvious clerical errors

or delete surplusage from the indictment.

11. A “variance” occurs when the evidence at trial proves facts other
than those alleged in the indictment.

12. An indictment with a variance cannot stand. If a Δ can demonstrate

prejudice from a variance, the conviction cannot stand.

IV. BAIL AND PRETRIAL RELEASE

A. INTRODUCTION

1. After a suspect is arrested and booked on charges, he or she will

typically seek release by posting bail.

2. Δs want bail for many reasons:

a) 1st no one wants to be incarcerated;

 b) 2nd, it is much more difficult to prepare for trial when a Δ is
incarcerated;

c) 3rd Δs who remain in pretrial custody face the loss of

income, social consequences, and even the loss of support by their
families;

d) Finally, there are intangible effects of a Δ remaining in

pretrial custody.

3. There may be legitimate reasons that the prosecution wants the Δ

to remain in custody. The Δ may pose a threat to society or prosecutors
may worry that the Δ is a flight risk if not kept incarcerated before trial.

4. The 8th Am provides that where bail is permitted, it cannot be

excessive.

5. Anything more than is necessary to secure the Δ’s appearance in

court is deemed excessive.

6. Bail need not be allowed in capital offense cases.

7. The SC has never held that the “no excessive bail” clause of the 8th
Am applies to state prosecutions.

8. Bail in the federal system is governed by the Bail Reform Act of

1984 U.S.C. §§ 3142 & 3144.

9. In most jurisdictions, the police have a “bail schedule” that they can
use to release a suspect on bail before the Δ has made a court appearance.

10. There are many types of bail:

a) Own Recognizance (OR) or Personal Recognizance (PR)

release permits a Δ to be released upon a mere promise to appear in
court.

b) Under Conditions of Pretrial Release a Δ may be subject to

supervision, or perhaps a rehabilitation program, before trial.
 c) A Financial Bond requires a Δ to post money with the court.
There are 2 basic types of bonds:

(1) a Secured Bond usually secured by a deed to

property; and

(2) an Unsecured Bond, which is based on a cash deposit

and a promise to pay the remainder if the Δ fails to appear.

11. Rules of Evidence don’t apply to detention hearings.

12. The 6th Am right to counsel attaches at bail hearing.

13. The court has the right to reject illegally derived funds as bail
because that is not the type of bail that is likely to secure a Δ’s presence.

14. To determine whether the proceeds being posted as bond are from
an illegal source, the court may hold a special hearing referred to as a
Nebbia hearing.

15. A court can impose many different types of conditions on a Δ

posting bond. They may include drug testing, restrictions on travel,
surrender of passport, counseling, lack of contact with witnesses and
victims, home confinement, and other similar measures.

16. Bail decisions must be individualized to the particular Δ.

17. If a Δ fails to comply with the terms of bail, such as not appearing
at trial, bail may be forfeited. Forfeiture is governed by FRCP 46(f).

B. PREVENTIVE DETENTION

1. Pretrial Detention

a) No due process issue b/c pretrial detention is procedural and

not punitive.

b) No excessive bail issue b/c 8th Am doesn’t require courts to

admit all Δs to bail.

c) Detention b/c of danger to the community is constitutional.

d) The Bail Reform Act of 1984 allows a federal court to detain
an arrestee pending trial if the gov’t demonstrates by clear and
convincing evidence after an adversary hearing that no release
conditions “will reasonably assure…the safety of any other person
and the community.”—U.S. v. Salerno

e) Responding to “the alarming problem of crimes committed

by persons on release,” Congress formulated the Bail Reform Act of
1984.—U.S. v. Salerno

(1) §3141(a) requires a judicial officer to determine

whether an arrestee shall be detained.

(2) §3141(b) & (c) should a judicial officer order

detention, the detainee is entitled to expedited appellate
review of the detention order.

(3) §3141 (e) provides that “if after a hearing pursuant to

the provisions of subsection (f), the judicial officer finds that
no condition or combination of conditions will reasonably
assure the appearance of the person as required and the
safety of any other person and the community, he shall
order the detention of the person prior to trial.

(4) §3141(f) provides the arrestee with a number of

procedural safeguards. He may request the presence of
counsel at the detention hearing, he may testify and present
witnesses in his behalf, as well as proffer evidence, and he
may cross-examine other witnesses appearing at the hearing.

(5) §3141(f) further provides that the standard of proof is

clear and convincing evidence.
 (6) §3141(g) specifies the considerations relevant to the
decision. These factors include the nature and seriousness of
the charges, the substantiality of the gov’t’s evidence against
the arrestee, the arrestee’s background and characteristics,
and the nature and seriousness of the danger posed by the
suspect’s release.

(7) §3141(i) provides that if the judicial officer finds that

no conditions of the pretrial release can reasonably assure
the safety of other persons and the community, he must state
his findings of fact in writing.

f) Salerno cleared the way for courts to consider both a Δ’s

flight risk and future danger to the community in deciding bail.

(1) Standard for risk of flight is preponderance of the

evidence.

(2) Standard for danger to community is clear and

convincing evidence.

g) In general, courts will consider several factors in

determining whether the Δ should be granted bail:

(1) the seriousness of the offense;

(2) the punishment the Δ faces;

(3) Δ’s prior criminal record;

(4) Δ’s ties to the community;

(5) Δ’s character;

(6) Δ’s financial status; and

(7) any other information relevant to its determination of

whether Δ is a flight risk or possesses a future risk to the
community.
 h) Bail pending appeal does not pose the same issues as bail
before trial b/c the Δ no longer enjoys a presumption of innocence.

i) Under the Bail Reform Act of 1984, the burden shifts to the Δ
to show why he should be released pending appeal.

j) Under the Bail Reform Act, a Δ may only be released

pending appeal if the court finds “by clear and convincing evidence
that the person is not likely to flee or pose a danger to the safety of
another person or the community” and “the appeal is not for
purposes of delay and raises a substantial question of law or fact
likely to result in reversal or an order for a new trial.”

2. Other Types of Preventive Detention

Persons who are not being held on criminal charges may also be detained.
This may include preventative detention of material witnesses, sexual
predators, psychiatric patients, persons subject to deportation and
removal proceedings, and individuals designated as enemy combatants.
Each of these situations requires a balancing of the detainee’s liberty
interests with the gov’t’s reasons for seeking detention.

a) Detention of Material Witnesses

(1) Pursuant to 18 U.S.C. §3144 persons designated as

“material witnesses” may be detained pretrial.

(2) A material witness if an individual who has

information regarding a criminal proceeding whose
appearance “may become impracticable to secure…by
subpoena.”

(3) The term “criminal proceeding” encompasses

proceedings before a GJ.—U.S. v. Awadallah
 (4) Given the broad language of the statute, its legislative
history…the substantial body of case law indicating that
there is no constitutional impediment to detention of GJ
witnesses and the unquestioned application of the statute to
GJ witnesses over a period of decades.—U.S. v. Awadallah

(5) §3144 sufficiently limits the significant infringement

on liberty and reasonably balances it against the gov’t’s
countervailing interests.—U.S. v. Awadallah

(6) No material witness may be detained b/c of inability

to comply w/ any condition of release if the testimony of
such witness can adequately be secured by a deposition.—
U.S. v. Awadallah

(7) Detention must be necessary to prevent a failure of

justice.—U.S. v. Awadallah

b) Preventive Detention of Sexual Predators

(1) The pre-commitment requirement of a “mental

abnormality” or “personality disorder” is consistent with the
requirements of these other statutes that have been upheld
in that it narrows the class of persons eligible for
confinement to those who are unable to control their
dangerousness.—Kansas v. Hendricks

c) Preventive Detention for Immigration Detainees

(1) Immigrants illegally in the U.S. may also be detained

by the gov’t even if they have not been convicted of or
charged with a specific crime.

d) Enemy Combatants

(1) It allows for the ongoing detention of individuals,

including American citizens, suspected of terrorism whom
the president designates to be enemy combatants.
V. DISCOVERY

A. INTRO

1. Discovery in criminal cases serves many important purposes.

a) First, it gives the prosecution and defense an idea of the

evidence that the other side will present at trial.

b) Second, discovery leads to pretrial settlement of cases.

c) Third, discovery allows each party to contest evidence

before it is presented to the court.

d) Finally, discovery creates more of a level playing field for

trial.

2. Criminal cases do not have unlimited discovery.

3. Only a few jurisdictions currently have “open-file” discovery, a

procedure that allows the defense access to anything in the prosecutor’s
files.

4. Concerns about interference with the Δ’s 5th Am privilege against

self-incrimination limit the prosecutor’s right to reciprocal discovery from
the defense.

5. Some discovery rules are statutory. They generally cover the

inculpatory evidence the prosecutor must disclose to the defense.

6. Inculpatory evidence is evidence the prosecution will use to prove

its case-in-chief at trial.

7. Statutory discovery also covers the defense’s reciprocal discovery

obligations, such as the obligation to make available expert reports or
physical evidence the defense will introduce in its case-in-chief at trial.

8. There are statutory rules that govern the disclosure of witness

statements that each side plans to use.
 9. The second type of discovery is mandated by the Δ’s constitutional
right to a fair trial. Pursuant to the 5th and 14th Ams, the Δ has a due
process right to the discovery of exculpatory information.

10. Exculpatory evidence is evidence that undermines the

prosecution’s case either by supporting the Δ’s claim of innocence or by
impeaching the prosecution’s witnesses.

11. General policy interests in fair and expeditious proceedings also

support the prosecution’s right to statutory and rule discovery.

12. Defense discovery to the prosecution can (1) prevent surprise at

trial, (2) deter perjured testimony, and (3) reduce trial delay.

13. Prosecution doesn’t have to disclose work product or GJ

proceedings, except the Δ’s.

B. STATUTORY (NON-CONSTITUTIONAL) & RULE

DISCOVERY: A TWO-WAY

1. Street Statutory rules of discovery are ordinarily two-way streets.

2. FRCP 16(a) requires that the prosecution disclose to the defense all
statements of the Δ, the Δ’s prior criminal record, documents and physical
objects the prosecutor will seek to introduce during trial, experts reports,
and the bases of experts’ opinions.

3. Rule 26.2, the Jencks Act, requires that the prosecutor disclose a
witness’s pretrial statements after the witness testifies on direct
examination so that these statements are available for impeachment.

4. Under Rule 16(b), if the defense requests discovery from the

prosecution, the defense has a reciprocal duty to provide documents and
tangible objects it intends to introduce in its case-in-chief, as well as access
to experts’ reports and the bases for their testimony.

5. Rule 26.2 requires that the defense provide a copy of its witnesses’
pretrial statements after defense witnesses testify on direct examination.
6. The FRCP also contain notice requirements that both sides must
follow.

7. Rule 12.1 requires the defense, upon the gov’t’s request, to provide
written notice of an intention to offer an alibi defense. Once such notice is
provided, the prosecution has a duty to provide to the defense
information regarding rebuttal witnesses it will use to establish the Δ’s
presence at the scene of the crime or to rebut the testimony of the alibi
witnesses.

8. Rule 12.2 requires that the Δ give notice of an intention to rely on a

mental defense at trial. Once notice has been provided, the gov’t has an
opportunity to have its expert examine the Δ so that it can prepare for the
defense’s case.

9. If there is a violation of the statutory rules of discovery, the court

has broad discretion in ordering a remedy.

a) The court may exclude the evidence, grant an appropriate

continuance, or sanction counsel.

b) Courts will generally impose the least severe sanction that

will accomplish the goal of compliance with the discovery rules.

c) In deciding what, if any, sanction to impose on parties that

violate discovery rules, courts consider whether the violating party
acted in bad faith and whether the opposing party suffered any
prejudice as a result of the violation.

10. The SC held that a Δ’s 6th Am right to compel witnesses is not
violated if a court bars a defense witness from testifying because the
defense has not complied with a valid court discovery order.

11. Nothing in the 5th Am privilege entitles a Δ as a matter of

constitutional right to await the end of the State’s case before announcing
the nature of his defense, any more than it entitles him to await the jury’s
verdict on the State’s case-in-chief before deciding whether or not to take
the stand himself.—Williams v. Florida
C. CONSTITUTIONAL DISCOVERY: A ONE-WAY STREET

1. The Bill of Rights doesn’t refer explicitly to “the right to discovery.”

The Court has fashioned the right to discovery from the Δ’s right of due
process. Failure to provide exculpatory evidence is a due process
(fundamental fairness) issue.

2. There are no constitutional discovery rights for the prosecution.

3. Brady violation: A prosecution that withholds evidence on demand

of an accused which, if made available, would tend to exculpate him or
reduce the penalty casts the prosecutor in the role of an architect of a
proceeding that doesn’t comport with the standards of justice.

a) The suppression by the prosecution of evidence

b) favorable to an accused upon request violates due process

where

c) the evidence is material either to guilt or to punishment,

irrespective of the good faith or bad faith of the prosecution.—
Brady v. Maryland

4. Under Brady, the prosecutor has the responsibility of anticipating

what defenses might be presented in a case. Regardless of whether the
defense requests discovery, the prosecutor has the constitutional duty to
provide exculpatory evidence.

5. Brady did not set forth a requirement that exculpatory evidence be

provided in sufficient time for the defense to use it at trial.

6. Shortly after Brady, the SC extended the constitutional right to

discovery to not only evidence that tends to exculpate the Δ but also
evidence that undermines the prosecution’s case by impeaching its
witnesses.

7. Deliberate deception of a court and jurors by the presentation of

known false evidence is incompatible with “rudimentary demands of
justice.”—Giglio v. U.S.
8. The same result obtains when the State, although not soliciting false
evidence, allows it to go uncorrected when it appears.—Giglio v. U.S.

9. When the “reliability of a given witness may well be determinative

of guilt or innocence,” nondisclosure of evidence affecting credibility falls
within this general rule.—Giglio v. U.S.

10. A finding of materiality is required under Brady.—Giglio v. U.S.

11. Material: without it there could have been no indictment and no

evidence to carry the case to the jury; any information that would change
the outcome.—Giglio v. U.S.

12. If the exculpatory nature is apparent, the prosecutor must disclose

it whether or not it’s requested.

13. A conviction obtained by the knowing use of perjured testimony is

fundamentally unfair, and must be set aside if there is any reasonable
likelihood that the false testimony could have affected the judgment of the
jury.—U.S. v. Bagley

14. The standard of materiality applicable in the absence of a specific

Brady request is therefore stricter than the harmless-error standard but
more lenient to the defense than the newly-discovered-evidence standard.
—U.S. v. Bagley

15. A new trial must be granted when evidence is not introduced

because of the incompetence of counsel only if there is reasonable
probability that but for counsel’s unprofessional errors, the result of the
proceeding would have been different—U.S. v. Bagley quoting Strickland
v. Washington

16. Reasonable probability is a probability sufficient to undermine

confidence in the outcome.—U.S. v. Bagley quoting Strickland v.
Washington
 17. The Strickland formulation of the Agurs test for materiality is
sufficient to cover the “no request,” “general request,” and “specific
request” cases of prosecutorial failure to disclose evidence favorable to the
accused.

18. A showing of materiality does not require demonstration by a

preponderance that disclosure of the suppressed evidence would have
resulted ultimately in the Δ’s acquittal.—Kyles v. Whitley

19. The question is not whether the Δ would more likely than not have
received a different verdict with the evidence, but whether in its absence
he received a fair trial, understood as a trial resulting in a verdict worthy
of confidence.—Kyles v. Whitley

20. One does not show a Brady violation by demonstrating that some
of the inculpatory evidence should have been excluded, but by showing
that favorable evidence could reasonably be taken to put the whole case in
such a different light as to undermine confidence in the verdict.—Kyles v.
Whitley

21. Once a reviewing court applying Bagley has found constitutional

error there is no need for further harmless-error review.—Kyles v. Whitley

22. A jury must be informed when a witness is a paid informant,

otherwise there is a 6th Am right to fair trial issue.—Banks v. Dretke

23. Late disclosure of Brady material will not necessarily result in a

reversal unless the Δ can show that the delay denied him or her a fair trial.

24. The remedy for a Brady violation is the grant of a new trial at
which the Δ will be able to use the previously undisclosed exculpatory
evidence.

D. DISCOVERY FOR GUILTY PLEAS

1. Due Process does not require that the gov’t disclose impeachment
evidence before a Δ’s guilty plea.
 2. Disclosure of impeachment evidence is required to ensure a fair
trial, but a guilty plea may be voluntary without it.

E. DUTY TO PRESERVE EVIDENCE

1. Unless a Δ can show bad faith on the part of the police, failure to
preserve potentially useful evidence does not constitute a denial of due
process of law.—Arizona v. Youngblood

VI. PLEA BARGAINING AND GUILTY PLEAS

A. INTRO

1. In a criminal case, there are three types of pleas:

a) not guilty: “Prosecutor, prove your case.”

b) guilty: an admission by the Δ that he committed the crime

and waives his right to trial

c) nolo contendere: Δ does not admit guilt to the charged

offense but may be sentenced the same as if he pled guilty

B. PLEA BARGAINING

1. Plea Bargaining is the process through which the Δ agrees to admit

guilt in exchange for some concession from the gov’t.

2. There are 2 main types of plea bargaining:

a) bargaining that reduces the number or severity of the

charges the Δ faces and

b) bargaining that reduces the Δ’s sentence or the gov’t’s

recommendation for a sentence.

3. FRCP 11(c)(1) prohibits the court from participating in plea

discussions.
 4. A guilty plea is more than an admission of past conduct; it is the
Δ’s consent that judgment of conviction may be entered without a trial—a
waiver of his right to trial before a jury or a judge.—Brady v. U.S.

5. Waivers of constitutional rights not only must be voluntary but

must be knowing, intelligent acts done with sufficient awareness of the
relevant circumstances and likely consequences.—Brady v. U.S.

6. A guilty plea is not per se compelled and invalid under the 5th Am
whenever motivated by the Δ’s desire to accept the certainty or
probability of a lesser penalty rather than face a wider range of
possibilities from a jury.—Brady v. U.S.

7. Δs require effective assistance of counsel during plea negotiations.

—Missouri v. Frye

8. As a general rule, defense counsel has the duty to communicate

formal offers from the prosecution to accept a plea on terms and
conditions that may be favorable to the accused.—Missouri v. Frye

9. If a Δ can show that but for ineffective assistance of counsel he

would have accepted the plea that would have resulted in a lesser
sentence, then the court may exercise discretion in determining whether
the Δ should receive the term of imprisonment the gov’t offered in the
plea, the sentence he received at trial or something in between.—Lafler v.
Cooper

10. In other situations, the proper exercise of discretion to remedy the

constitutional injury may be to require the prosecution to reoffer the plea
proposal.—Lafler v. Cooper

C. GUILTY PLEAS

1. A plea of guilty is more than a confession which admits that the

accused did various acts; it is itself a conviction; nothing remains but to
give judgment and determine punishment.—Boykin v. Alabama
 2. Admissibility of a confession must be based on a reliable
determination on the voluntariness issue which satisfies the constitutional
rights of the Δ.—Boykin v. Alabama

3. Several constitutional rights are involved in a waiver that takes

place when a plea of guilty is entered in a state criminal trial:

a) First, the privilege against self-incrimination guaranteed by

th
the 5 Am;

b) Second, the right to trial by jury guaranteed by the 6th Am;

and

c) Third, the right to confront one’s accusers guaranteed by the

th
6 Am—Boykin v. Alabama

4. A waiver of rights cannot be presumed from a silent record.—

Boykin v. Alabama

5. A plea is not voluntary unless the Δ receives real notice of the true
nature of the charge against him; this is the first and most universally
recognized requirement of due process.—Henderson v. Morgan

6. In order to satisfy the “prejudice” requirement, the Δ must show

that there is a reasonable probability that, but for counsel’s errors, he
would not have pleaded guilty and would have insisted on going to trial.
—Hill v. Lockhart

7. Advice regarding deportation is not categorically removed from

the ambit of the 6th Am right to counsel—Padilla v. Kentucky

D. RULE 11 AND THE PROCEDURAL REQUIREMENTS FOR

ENTERING GUILTY PLEAS

1. A guilty plea is valid only if it demonstrates on the record that the

Δ has knowingly and voluntarily waived his constitutional rights.
2. Rule 11(b)(1) requires that the judge address the Δ personally in
open court to inform the Δ, and to determine that the Δ personally
understands, that the Δ will be waiving the following rights by pleading
guilty:

a) The right not to plead guilty

b) The right to a jury trial

c) The right to be represented by counsel

d) The nature of the charge to which the Δ is pleading

e) Any mandatory minimum penalty

f) Any maximum possible penalty

g) The Δ’s waiver of certain appeal rights

h) The gov’t’s right to use the Δ’s statements in a perjury

prosecution

3. The court must also advise the Δ of likely consequences of pleading

guilty and establish that there is a factual basis for the plea.

a) Ordinarily, the Δ will establish a factual basis by briefly

describing his criminal actions.

b) In some courts however, the prosecutor will set forth the

factual basis for the plea.

c) In North Carolina v. Alford, the Court held that as long as

the record reflects a factual basis for a guilty plea, the Δ need not
personally admit his guilt for the guilty plea to be valid.

4. The court must ensure that the plea is voluntary and did not result
from force, threats of force, or promises other than those in a plea
agreement.

5. Finally, the plea must be entered on the record.

 6. A Δ must be mentally competent to plead guilty.

7. The standard for pleading guilty is no higher than the competency

standard to stand trial: that the Δ understands the proceedings against
him and be able to consult with his lawyer with a reasonable degree of
rational understanding.

8. The SC does not require prosecutors to disclose impeachment

information relating to any informants or other witnesses before entering
into a binding plea agreement with the Δ.

E. REMEDIES FOR VIOLATIONS OF PLEA AGREEMENTS

1. 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 or consideration, such promise must be fulfilled.—Santobello
v. New York

2. Permitting the State to enforce a plea agreement after the Δ has

breached does not violate the Double Jeopardy Clause.—Ricketts v.
Adamson

F. WITHDRAWAL OF GUILTY PLEAS

1. A guilty plea is a waiver of the Δ’s right to challenge the

prosecution’s case, unless the Δ has entered a conditional plea reserving
issues for appeal.

2. FRCP 11 provides that, before a guilty plea is accepted, the Δ may

withdraw a guilty plea for any reason.

3. However, once a Δ has entered his plea and the court has accepted
is, a guilty plea may be withdrawn only for a fair and just reason.

4. In deciding whether to allow the withdrawal of a guilty plea, a

court must consider the need for finality in guilty pleas, the Δ’s reasons for
withdrawing the plea, and the prejudice to the prosecution by allowing
the withdrawal of the plea.
 5. If a Δ is not allowed to withdraw a guilty plea, his only options are
to appeal the court’s decision or to raise a collateral challenge to the plea.

VII. SPEEDY TRIAL RIGHTS

A. INTRO

1. The 6th Am provides that “in all criminal prosecutions, the accused
shall enjoy the right to a speedy and public trial.”

2. Although we speak generally about the right to a speedy trial, there

are really 2 standards at issue:

a) rules governing delay during the period from commitment

of the crime until arrest or formal charging and

b) rules governing delays during the period from charging to

trial.

B. WHY SPEEDY TRIAL RIGHTS MATTER

1. In addition to wanting to preserver evidence and witness

testimony, prosecutors must also be concerned about the emotional toll of
long delays on victims and other witnesses.

2. Delays in pursuing cases can impact on the public’s confidence in

the criminal justice system.

3. Speedy trial delays cause congestion in the courts and undermines

the efficiency of the CJ system.

C. DUE PROCESS AND SPEEDY TRIAL RIGHTS

1. There are 2 periods of delay that occur in a criminal proceeding.

2. First, there is the period of time from commitment of the crime

until charges are filed; this is referred to as “pre-charging delay.”
3. Although this delay may have an impact on a Δ’s right to a fair
trial, it is not covered by the Δ’s 6th Am right to a speedy trial.

4. The SC has held that speedy trial rights aren’t triggered until after a
Δ has been formally charged.

5. The period of pre-trial delay is covered by the statutes of limitation

and the right to due process.

6. The 2nd period of delay runs from the filing of charges until the time
that trial begins.

7. This period of time is covered by the 6th Am right to a speedy trial.

It is often covered by Speedy Trial Acts that provide statutory limits on
pretrial delay.

8. The 6th Am speedy trial provision has no application until the

putative Δ in some way becomes an “accused.”—U.S. v. Marion

9. These provisions would seem to afford no protection to those not

yet accused, nor would they seem to require the gov’t to discover,
investigate and accuse any person within a particular period of time.—
U.S. v. Marion

10. We decline to extend the reach of this Am to the period prior to

arrest.—U.S. v. Marion

11. The applicable statute of limitations is the primary guarantee

against bringing overly stale criminal charges.—U.S. v. Marion

12. Federal Statutes of Limitations:

a) 18 U.S.C. §3281 Any indictment for any offense punishable

by death may be found at any time without limitation.

b) 18 U.S.C. §3282 Except as otherwise expressly provided by

law, no person shall be prosecuted, tried or punished for any
offense, not capital, unless the indictment is found or the
information is instituted within 5 years next after such offense shall
have been committed.
 c) 18 U.S.C. §3283No statute of limitations that would
otherwise preclude prosecution for an offense involving the sexual
or physical abuse, or kidnapping, of a child under the age of 18
shall preclude such prosecution during the life of the child or 10
years after the offense, whichever is longer.

d) 18 U.S.C. §3286(a) Terrorism crimes-8 year

e) 18 U.S.C. §3286(b) Terrorism crimes that resulted in or

created a foreseeable risk of death or serious bodily injury- no
statute of limitation

f) 18U.S.C.§3290 No statute of limitation shall extend to any

person fleeing from justice.

g) 18 U.S.C. §3293 Financial institutions-10 years

h) 18 U.S.C. §3294 Theft of major artwork-20 years

i) 18 U.S.C. §3297 The statute of limitations in all cases with

DNA evidence begins to run when a person has been implicated by
DNA evidence.

13. Proof of prejudice is generally a necessary but not sufficient

element of a due process claim, and that the due process inquiry must
consider the reasons for the delay as well as the prejudice to the accused.
—U.S. v. Lovasco

14. Reasons the Court declined to adopt a rule requiring the prompt
filing of charges immediately after the gov’t has assembled sufficient
evidence to prove guilt beyond a reasonable doubt:

a) It would place needless burdens on Δs, law enforcement

officials, and courts because the gov’t would end up having to have
separate trials for one Δ each time new evidence comes to light
rather than waiting to gather all evidence.

b) It would pressure prosecutors into resolving doubtful cases

in favor of early—and possibly unwarranted—prosecutions.
 c) It would preclude the gov’t from giving full consideration to
the desirability of not prosecuting in particular cases.

15. To prosecute a Δ following investigative delay does not deprive

him of due process, even if his defense might have been somewhat
prejudiced by the lapse of time.—U.S. v. Lovasco

16. Each jurisdiction has a Speedy Trial Act that commonly prescribes
the time period for bringing an accused to trial.

17. Under the federal Speedy Trial Act 18 U.S.C. §3161, trial must begin
within 70 days of the filing of an information or indictment or the Δ’s
initial appearance.

18. Excludable delay includes pretrial motions, the unavailability of the

Δ or an essential witness, or a catch-all “the ends of justice.”

19. The purpose of the Speedy Trial Act is not just to protect a Δ’s right
to a speedy trial; it is also designed to protect the public’s interest in a
speedy trial.

20. In determining whether there has been a violation of the right to a

speedy trial the court looks at 4 factors:

a) length of delay,

b) reason for delay,

c) Δ’s assertion of his right, and

d) prejudice to the Δ –assessed in the light of the interests the

right was designed to protect:

(1) to prevent oppressive pretrial incarceration

(2) to minimize anxiety and concern of the accused

(3) to limit the possibility that the defense will be

impaired. (this is the most serious interest) –Barker v. Wingo

21. This is a balancing test; all 4 factors are not necessary.

22. Affirmative proof of particularized prejudice is not essential to
every speedy trial claim.—Doggett v. US.

23. If the delay is greater than a year, there is a presumption of

prejudice; the greater the number of years, the greater the prejudice.—
Doggett v. U.S.

24. The attorney is the Δ’s agent when acting, or failing to act, in
furtherance of the litigation, therefore delay caused by the Δ’s counsel is
also charged against the Δ even if the attorney is a public defender,--
Vermont v. Brillon

25. Once a lawyer has undertaken the representation of an accused, the

duties and obligations are the same whether the lawyer is privately
retained, appointed, or serving in a legal aid or defender program.—
Vermont v. Brillon

26. The speedy-trial right is amorphous, slippery, and necessarily

relative.—Vermont v. Brillon

27. FRCP 48(b) grants trial courts the right to dismiss a case if there is
“unnecessary delay” in bringing a Δ to trial. The court may dismiss the
case with or without prejudice.

28. The Interstate Agreement on Detainer Act, 18 U.S.C. app. §2 (2000),

provides time limits for a Δ’s transfer from one jurisdiction to another.
Reasons:

a) Δs are deprived of opportunity for sentences to run

concurrent

b) Δs are classified as max security or close custody

c) Δs are ineligible for initial assignment in less than max

security

d) Δs are ineligible for trustee status

e) Δs are not allowed to live in dorms

 f) Δs are ineligible for study/work release programs

g) Δs are ineligible for a transfer to medium or min security

h) Δs are ineligible for good time credits

D. REMEDIES FOR SPEEDY TRIAL VIOLATIONS

1. The remedy for violations of Speedy Trial Acts and governing

federal rules is dismissal with or without prejudice.

2. The SC held that the only remedy that makes sense for violations of
th
the 6 Am right to speedy trial is dismissal with prejudice.—Strunk v. U.S.

a) Once the court finds out there has been a violation of the Δ’s
constitutional right to a speedy trial, it is too late to try the Δ.

E. SPEEDY TRIAL RIGHTS AND SENTENCING

1. The 6th Am guarantee protects the accused from arrest or

indictment through trial, but does not apply once a Δ has been found
guilty at trial or has pleaded guilty to criminal charges.—Betterman v.
Montana

2. For inordinate delay in sentencing, a Δ may have other recourse,

including, in appropriate circumstances, tailored relief under the Due
Process Clauses of the 5th and 14th Ams.—Betterman v. Montana

VIII. RIGHT TO COUNSEL

A. INTRO

1. Of all the Δ’s constitutional rights, none is more important than the
Δ’s right to counsel. With the assistance of counsel, a Δ can protect all of
his other rights.

2. The defense lawyer serves as an advocate for all the accused,

ensuring that both law enforcement and prosecutors comply with the Δ’s
constitutional rights.
 3. The right to counsel is a crucial right, but it involves more than just
the right to appointment of a lawyer. The 6th Am provides for the right to
the “effective” assistance of counsel.

B. APPOINTMENT OF COUNSEL

1. The necessity of counsel is so vital and imperative that the failure of

the trial court to make an effective appointment of counsel is a denial of
due process within the meaning of the 14th Am.—Powell v. Alabama

2. The assistance of counsel is one of the safeguards of the 6th Am

deemed necessary to insure fundamental human rights of life and liberty.
—Gideon v. Wainwright

3. In our adversary system of criminal justice, any person haled into

court, who is too poor to hire a lawyer, cannot be assured a fair trial unless
counsel is provided for him.—Gideon v. Wainwright

C. WHEN THE RIGHT TO COUNSEL APPLIES

1. The 6th Am provides that “in all criminal prosecutions, the accused
shall enjoy the right . . . to have the Assistance of Counsel for his defense.”

2. The Court has interpreted this language to mean that the absolute
right to counsel applies to all “critical stages” of a criminal prosecution
after the filing of formal charges.

3. The Court has expressly held that the right to counsel attaches at all
post-indictment pretrial lineups, preliminary hearings, post-indictment
interrogations, and arraignments.

4. The 6th Am right to counsel attached at the Δ’s first appearance

before a judicial officer after a formal charge has been made, regardless of
whether a prosecutor is present.

5. The right to counsel applies to a Δ’s first appeal of right. This

includes the first-tier of discretionary appeals.
 6. Even if a Δ’s does not have merit, the Δ is entitled to appointed
counsel who will examine the record carefully to identify any
nonfrivolous issues for the appellate court to review.

7. However, there is no right to counsel for second-tier discretionary

state appeals or petitions for review to the SC. The right to counsel also
does not attach at parole hearings or probation hearings (case by case due
process approach) or in civil matters such as habeas corpus proceedings.

8. Absent a knowing and intelligent waiver, no person may be

imprisoned for any offense, whether classified as petty, misdemeanor or
felony, unless he was represented by counsel at his trial.—Argersinger v.
Hamlin

D. STANDARD FOR “EFFECTIVE ASSISTANCE” OF COUNSEL

1. If a Δ counsel fails to present mitigating evidence during the

sentencing phase, this is ineffective assistance of counsel—Wiggins v.
Smith & Rompilla v. Beard

2. The benchmark for judging any claim of ineffectiveness must be

whether counsel’s conduct so undermined the proper functioning of the
adversarial process that the trial cannot be relied on as having produced a
just result.—Strickland v. Washington

3. A claim that counsel was ineffective has two components:

a) the Δ must show that counsel’s performance was deficient ;

and

(1) This requires a showing that counsel made errors so

serious that counsel was not functioning as the “counsel”
guaranteed by the 6th Am

b) the Δ must show that the deficient performance prejudiced

the defense.
 (1) This requires showing that counsel’s errors were so
serious as to deprive the Δ of a fair trial, a trial whose result
is reliable. –Strickland v. Washington

4. The proper measure of attorney performance remains

reasonableness under prevailing professional norms.

5. Counsel owes a duty:

a) of loyalty;

b) to advocate the Δ’s cause;

c) to consult with the Δ on important decisions;

d) to keep the Δ informed of important developments in the

course of the prosecution;

e) to bring to bear such skill and knowledge as will render the

trial a reliable adversarial testing process;

f) to make reasonable investigations or to make a reasonable

decision that makes particular investigations unnecessary.

6. Actual or constructive denial of the assistance of counsel altogether

is legally presumed to result in prejudice.

7. Prejudice is presumed when counsel is burdened by an actual

conflict of interest.

8. Three circumstances under which prejudice may be presumed:

a) if there has been a complete denial of counsel;

b) if counsel entirely fails to subject the prosecution’s case to

meaningful adversarial testing; and

c) when there is an actual conflict of interest for counsel.

 9. The test for prejudice: the Δ must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.

10. A reasonable probability is a probability sufficient to undermine

confidence in the outcome.

11. It violates a Δ’s 6th Am right to force defense counsel to represent

coΔs over counsel’s timely objection.

12. A Δ can demonstrate a 6th Am violation by showing

a) defense counsel was actively representing conflicting

interests; and

b) the conflict adversely affected counsel’s performance for the

Δ.

13. If Δ counsel doesn’t do due diligence in seeking out an alibi witness

or speaking with the witness once found; this is ineffective assistance of
counsel.

14. Δ counsel is not expected to do something unlawful (i.e. suborn

perjury) in his zealous advocacy; this is not ineffective assistance of
counsel.

15. 6th Am guarantees a Δ the right to counsel of his or her choice, if he

can afford the counsel of his/her choice. You don’t get to pick and choose
as an indigent.—U.S. v. Gonzales-Lopez

16. If there is an indigent Δ at trial and an expert is NECESSARY to

present a meaningful defense, the gov’t must pay for it. (violation of due
process issue)—Ake v. Oklahoma

E. RIGHT OF SELF-REPRESENTATION

1. Δ can choose to represent himself assuming he is competent to

represent himself. He must knowingly, voluntarily and intelligently waive
his right to counsel.—Faretta v. California
 2. Court can’t force counsel on a Δ.

3. The right to self-representation at trial is known as Faretta Rights.

4. Trial Court has a right to appoint standby counsel in the event that
the Δ has decided to represent himself.—McKaskle v. Wiggins

5. Standby counsel must not do anything to destroy the jury’s

perception that the Δ is representing himself.—McKaskle v. Wiggins

6. Standby counsel is allowed to provide guidance but cannot be

doing the work of counsel or else it’s “hybrid counsel” which is
prohibited.

7. Levels of Competency:

a) self-representation (highest standard);

b) to stand trial; and

c) to enter a guilty plea pro se (same as standing trial)

8. The gov’t presumes a Δ competent to stand trial; the Δ has the

burden of proving by preponderance of the evidence that he is not
competent.

9. A person is not entitled to self-representation on appeal.

F. RIGHT OF COUNSEL FOR ENEMY COMBATANTS

1. Due process demands that a citizen held in the U.S. as an enemy

combatant be given a meaningful opportunity to test the factual basis for
that detention before a neutral decision-maker.

IX. TRIAL

A. TRIAL BY JURY
1. The 6th Am provides that “in all criminal prosecutions, the 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.”

2. Benefits of jury trials: citizens get to participate in the process, eases

the burden on judges, jury can refuse to enforce unduly harsh laws, and
increased willingness on the part of the public to accept the outcome.

3. Detriments of jury trials: cumbersome process, could diminish

respect for the process for some people.

4. A person is entitled to a jury trial in all serious criminal cases.—

Duncan v. Louisiana

5. FRCP 23(a) provides that waiver of the jury trial right is permitted
but the government must consent and the court must approve.

6. Right to a jury trial attached in felony cases and misdemeanor cases

unless it is considered petty (less than 6 months).

7. Aggregating sentences does not change the offenses from petty to

serious.

8. Twelve person panel is not a necessary ingredient of a trial by jury.

—Williams v. Florida

9. Six person panel is ok.

10. The purpose and functioning of a jury is impaired to a

constitutional degree if there are less than 6 members.—Ballew v. Georgia

11. Function is that of unanimity.

12. General verdict form is “guilty or not guilty.”

13. Special verdict form asks more questions.

14. Inconsistent verdict aren’t a problem constitutionally. Judge will

follow jury form as is.
 15. Jury nullification is when jury makes a decision based on
something other than the facts.

16. An Allen Charge (or dynamite charge) is where the judge says hold
outs (minority) need to seriously consider the other side. [basically
browbeating the minority jurors into agreeing with the majority]

17. A non-unanimous jury is constitutionally sufficient.—Apodaca v.

Oregon

18. Verdicts have been upheld as low as 9 to 3 (75%).

19. FRCP 31 says verdicts have to be unanimous.

B. JURY COMPOSITION AND SELECTION

1. Venire: pool of people called to potentially participate in the trial.

2. Petit jury is selected from the venire.

3. Voir Dire: jury selection.

4. Ways to remove:

a) strike for cause: person is not qualified or they are biased

b) peremptory challenge: simply because the atty doesn’t want

them on the jury

5. Petit juries must be selected from a fair cross section of the

community.

6. Peremptory challenges are not constitutional.

7. We accept them because we have always done it this way.

8. Purposeful racial discrimination in selection of the venire violates a

Δ’s right to equal protection because it denies him the protection that trial
by jury is intended to secure.

9. Selection procedures that purposefully exclude black persons from

juries undermine public confidence in the fairness of our system of justice.
 10. Establishing a prima facie case for racial discrimination in use of
peremptory challenges the Δ must show that

a) he is a member of a cognizable racial group, and

b) that the prosecutor has exercised peremptory challenges to

remove from the venire members of the Δ’s race.

c) the Δ is entitled to rely on the fact, to which there can be no

dispute, that peremptory challenges constitute a jury selection that
permits “those to discriminate who are of a mind to discriminate.”

d) the Δ must show that these facts and any other relevant
circumstances raise an inference that the prosecutor used that
practice to exclude the veniremen from the petit jury on account of
their race.

11. Once the prima facie showing has been made, the gov’t give make
a non-discriminatory reason for the use of the peremptory challenge.

12. A litigant has the third-party standing to object to the

discriminatory use of peremptory challenges, even if the litigant is not the
same race as the excluded juror.

13. Batson has been extended to include gender, religion, and sexual
orientation.

C. PRETRIAL PUBLICITY AND THE RIGHT TO A FAIR TRIAL

1. It is not required that the jurors be totally ignorant of the facts and
issues involved.—Irvin v. Dowd

2. It is sufficient if the juror can lay aside his impression or opinion

and render a verdict based on the evidence presented in court.—Irvin v.
Dowd

3. Prominence does not necessarily produce prejudice.

4. Factors to consider:
 a) the size and characteristics of the community in which the
crime occurred,

b) whether news stories contained a confession or other

blatantly prejudicial information, and

c) time elapsed between the crime and the trial.

5. The 1st Am provides a presumption that the press and public will
have access to criminal trials and that this right can be compromised only
if there is an overriding government interest set forth in findings by the
court.

6. Two reasons why a right of access to criminal trials is properly

afforded protection by the 1st Am:

a) First, the criminal trial historically has been open to the press
and general public.

b) Second, the right of access to criminal trials plays a

particularly significant role in the functioning of the judicial process
and the gov’t as a whole. Public scrutiny of a criminal trial
enhances the quality and safeguards the integrity of the fact-finding
process, with benefits to both the Δ and to society as a whole.
Public access to the criminal trial fosters an appearance of fairness,
thereby heightening public respect for the judicial process. Public
access to criminal trials permits the public to participate in and
serve as a check upon the judicial process—an essential component
in our structure of self-government.

7. Where the State attempts to deny the right of access in order to

inhibit the disclosure of sensitive information, it must be shown that the
denial is necessitated by a compelling government interest, and is
narrowly tailored to serve that interest. [strict scrutiny]

8. The 1st Am right of access to criminal proceedings applies to

preliminary hearings that have traditionally been open to the public, such
as preliminary hearings.
 9. Two key factors were: (1) a tradition of openness to the proceeding
in question must exist and (2) the proceeding must be trial-like.

10. Due process requires that the accused receive a trial by an impartial
jury free from outside influences.—Sheppard v. Maxwell

11. The trial courts must take strong measures to ensure that the
balance is never weighed against the accused.—Sheppard v. Maxwell

12. An attorney may take reasonable steps to defend a client’s

reputation and reduce the adverse consequences of indictment.—Gentile
v. State Bar of Nevada

13. The court must consider less restrictive options before going to the
extreme.

14. There is no constitutional rule barring photographic, radio and

television coverage in all cases and under all circumstances.

15. Redress for Δ is only available for specific prejudice.

a) To demonstrate prejudice in a specific case a Δ must show

something more than juror awareness that the trial is such as to
attract the attention of broadcasters.

D. TRIAL RIGHTS: DUE PROCESS, RIGHT TO

CONFRONTATION, AND PRIVILEGE AGAINST SELF-
INCRIMINATION

1. Due Process Clause prohibits the criminal prosecution of a Δ who is

not competent to stand trial.

2. A Δ is competent to stand trial when he has sufficient present

ability to consult with his lawyer with a reasonable degree of rational
understanding and has a rational as well as factual understanding of the
proceedings against him.

3. A state may medicate a Δ to make him competent to stand trial.

4. The gov’t may administer antipsychotic drugs to a mentally ill Δ
facing serious criminal charges in order to render the Δ competent to
stand trial but only if:

a) treatment is medically appropriate;

b) it is substantially unlikely to have serious side effects that

will undermine the fairness of the trial; and

c) there are important government interests in having the Δ

medicated, such as that he poses a danger to himself or others.

5. There are at least 3 constitutionally permissible ways for a trial

judge to handle an obstreperous Δ:

a) bind and gag him, thereby keeping him present;

b) cite him for contempt;

c) take him out of the courtroom until he promises to conduct

himself properly.

6. Once a person has done something to lose the right to confront,

that right can be reclaimed.

7. FRCP 43(a) provides that a Δ has the right to be present at trial and
at other crucial stages of the criminal proceedings, including arraignment,
plea, jury empanelment, return of the verdict, and sentencing.

8. However, FRCP 43(c) recognizes that a Δ may be tried in absentia if

he engages in disruptive conduct or voluntarily absents himself after the
trial starts.

9. The law has long forbidden routine use of shackling during the
guilt phase; it permits a State to shackle a criminal Δ only in the presence
of a special need.

a) There must be a particular justification for shackling a

particular Δ in a particular courtroom.
10. The deployment of security personnel during trial is not the sort of
inherently prejudicial practice that, like shackling, should be permitted
only where justified by an essential state interest specific to each trial.

11. Making a Δ appear in prison garb poses such a threat to the fairness
of the fact-finding process that it must be justified by an essential state
policy.

12. The right guaranteed by the Confrontation Clause includes not

only a personal examination but also (1) insures that the witness will give
his statements under oath—thus impressing him with the seriousness of
the matter and guarding against the lie by the possibility of a penalty for
perjury; (2) forces the witness to submit to cross-examination, the greatest
legal engine ever invented for the discovery of truth; and (3) permits the
jury that is to decide the Δ’s fate to observe the demeanor of the witness in
making his statement, thus aiding the jury in assessing his credibility.

13. Elements of confrontation: physical presence, oath, cross-

examination, and observation of demeanor by the trier of fact.

a) These elements help to ensure that evidence admitted

against an accused is reliable and subject to the rigorous adversarial
testing.

14. A state’s interest in the physical and psychological well-being of

child abuse victims may be sufficiently important to outweigh, at least in
some cases, a Δ’s right to face his or her accuser in court.

15. The text of the Confrontation Clause applies to witnesses, those

who bear testimony.

16. Testimony is typically a solemn declaration or affirmation made for

the purpose of establishing or proving some fact.—Crawford v.
Washington

17. Out of court testimonial statements may only be admitted if the

person is unavailable and only if there was an opportunity to cross-
examine him.
 a) This applies at a minimum to prior testimony at a
preliminary hearing, before a grand jury, or at a former trial; and to
police interrogation.

18. The Clause’s ultimate goal is to ensure reliability of evidence, but it

is a procedural rather than substantive guarantee.

19. It commands, not that evidence be reliable, but that reliability be

assessed in a particular manner: by testing in the crucible of cross-
examination.

20. To determine whether the primary purpose of an interrogation is to

enable police assistance to meet an ongoing emergency which would
render the resulting statements nontestimonial, the relevant inquiry is not
the subjective or actual purpose of the individuals involved in a particular
encounter, but rather the purpose that reasonable participants would have
had as ascertained from the individuals’ statements and actions and the
circumstances in which the encounter occurred.

21. In determining whether the statements are testimonial or

emergency there are 3 factors to consider:

a) is the information about past or present events;

b) are the questions necessary to resolve emergency; and

c) are the questions formal or informal.

22. A dying declaration must still be non-testimonial in nature.

23. **Remember Bruton Problem when analyzing Confrontation

Clause issues.**

24. There is no rule that statements to individuals who are not law
enforcement officers are categorically outside the 6th Am.

25. The trial court has to give a “no adverse inference” instruction if Δ
asks for it—Carter v. Kentucky
 26. Prosecutor can make comments about Δ having been in the
courtroom if Δ takes the stand.—Carter v. Kentucky

27. The relevant question is whether the prosecutors’ comments so

infected the trial with unfairness as to make the resulting conviction a
denial of due process.—Darden v. Wainwright

28. The prosecutors’ argument must not manipulate or misstate the

evidence, not must it implicate other specific rights of the accused such as
the right to counsel or the right to remain silent.—Darden v. Wainwright

29. The idea of invited response is used not to excuse improper

comments but to determine their effect on the trial as a whole.

E. DEFENDANT’S RIGHT TO PRESENT A DEFENSE

1. Where constitutional rights directly affecting the ascertainment of

guilt are implicated, the hearsay rule may not be applied
mechanicalistically to defeat the ends of justice.—Chambers v. Mississppi

2. The Constitution guarantees criminal Δs a meaningful opportunity

to present a complete defense.

a) This right is abridged by evidence rules that infringe upon a

weighty interest of the accused and are arbitrary or
disproportionate to the purposes they are designed to serve.

F. ROLE OF A JURY AND PROOF BEYOND A REASONABLE

DOUBT

1. The Due Process Clause protects the accused against conviction

except upon proof beyond a reasonable doubt of every fact necessary to
constitute the crime with which he is charged.

X. SENTENCING

A. INTRODUCTION
 1. Authority to sentence is shared between the legislature and the
judiciary.

2. In state systems, it is also shared with the Parole Board.

3. Prosecutors also have discretion based on charging and plea

agreements.

4. Supervised release (in the federal system) is not in lieu of

incarceration; it is in addition to incarceration.

B. INDETERMINATE VS. DETERMINATE SENTENCING

1. Indeterminate sentencing can give great discretion to the court to

fashion a sentence.

a) Its advantages are that it allows judges and the parole

supervising authority to tailor a sentence for a particular Δ.

b) The downsides include disparities in sentencing and less

control over judges who might be too lenient or too tough in the
eyes of others.

2. Determinate sentencing eliminates the role of a Parole Board.

3. Determinate sentencing tends to limit judicial discretion in

sentencing.

a) Supporters of determinate sentencing argue that it provides

more consistency and predictability in sentencing.

b) Opponents argue that it does a poor job of actually assessing

how deserving of punishment a Δ is.

4. The judge doesn’t have to make findings BRD at sentencing.

5. As long as the factors the judge considers doesn’t change the max
amount of time the Δ could have gotten already.

6. There is no right of confrontation at sentencing.

 7. There is no jury at sentencing unless the jury needs to determine
the sentencing range.

8. A Δ does have a right to counsel, a right to exculpatory

information, and a right to be free from compulsory self-incrimination.

9. Any factor that changes the sentencing range at all must be proven
BRD to a jury, including death in a capital case.

10. FRCP 32

11. The Guidelines is advisory while maintaining a strong connection

between the sentence imposed and the offender’s real conduct—Booker

C. EIGHTH AM: WHEN DOES A SENTENCE CONSTITUTE

CRUEL AND UNUSUAL PUNISHMENT?

1. The 8th Am provides that “excessive bail shall not be required, nor
excessive fines imposed, nor cruel and unusual punishments inflicted.”

2. It proscribes barbaric punishments and those that are

disproportionate to the crime committed.

3. Objective factors to look at when determining what is cruel and

unusual:

a) first, the gravity of the offense and the harshness of the

penalty;

b) second, compare the sentences imposed on other criminals

in the same jurisdiction; and

c) third, compare sentences imposed for the same crime in

other jurisdictions.

4. Justice Kennedy’s 8th Am proportionality review and the 4

principles that govern:

a) first, deference should be given to the legislatures as to the

appropriate sentence for specific crimes;
 b) second, the 8th Am does not mandate adoption of any one
penological theory;

c) third, marked divergences of underlying theories of

sentencing and in the length of prescribed prison terms are the
inevitable, often beneficial result of the federal structure; and

d) fourth, proportionality review should be informed by

objective factors to the maximum possible extent.

5. Mandatory LWOP for a juvenile offender is per se unconstitutional.

a) It is considered appreciably harsher.

b) Remember “evolving standards of decency.”

6. LWOP for a juvenile offender is possible, but it requires a showing

that they are “irreparably corrupt.”

7. The word “fine” was understood to mean a payment to a sovereign

as punishment for some offense.

8. The Excessive Fines Clause thus limits the gov’t’s power to extract
payments, whether in cash or in kind, as punishment for some offense.

9. Forfeitures—payments in kind—are thus fines if they constitute

punishment for some offense.

10. The touchstone of the constitutional inquiry under the Excessive

Fines Clause is the principle of proportionality: The amount of the
forfeiture must bear some relationship to the gravity of the offense that it
is designed to punish.

11. A punitive forfeiture violates the Excessive Fines Clause if it is

grossly disproportional to the gravity of the Δ’s crime.

12. Constitutional excessiveness standard:

a) judgments about the appropriate punishment for an offense

belong in the first instance to the legislature; and
 b) any judicial determination regarding the gravity of a
particular criminal offense will be inherently imprecise.

13. In personam proceeding: fine is punishment.

14. In rem proceeding: property is being punished.

15. Must look at the nature of crimes and if the Δ is in the class of
people the statute intends to affect.

16. The Excessive Fines Clause is now incorporated to the states.

D. THE DEATH PENALTY

1. The death penalty is not per se unconstitutional.

2. The primary principle is that a punishment must not be so severe

as to be degrading to the dignity of human beings.

3. The state must not arbitrarily inflict a severe punishment that it

does not inflict on others.

4. There are 4 principles by which we may determine whether a

particular punishment is cruel and unusual:

a) if it is unusually severe;

b) if there is a strong probability that it is inflicted arbitrarily;

c) if it is substantially rejected by contemporary society; and

d) if there is no reason to believe that it serves any penal

purpose more effectively than some less severe punishment.

5. There can be no discriminatory implementation of the death

penalty.

6. The death penalty must be proportionate not only to the crime

committed but also to the Δ’s role in that crime.
7. It is disproportionate to impose the death penalty on someone who
does not himself kill, attempt to kill, or intend that a killing take place or
that lethal force will be employed.

8. The death penalty is grossly disproportionate for the crime of rape;

even child rape.

9. Proportionality review under those evolving standards should be

informed by objective factors to the maximum possible extent.—Atkins v.
Virginia

10. There are 2 reasons consistent with the legislative consensus that
the mentally retarded should be categorically excluded from execution:

a) first, there is a serious question as to whether either

justification (retribution and deterrence of capital crimes by
prospective offenders) that we have recognized as a basis for the
death penalty applies to mentally retarded offenders; and

b) second, the reduced capacity of mentally retarded offenders.

11. Unless the imposition of the death penalty on a mentally retarded

person measurably contributes to one or both of these goals, it is nothing
more than the purposeless and needless imposition of pain and suffering,
and hence an unconstitutional punishment.

12. 3 general differences between juveniles under 18 and adults

demonstrate that juvenile offenders cannot with reliability be classified
among the worst offenders:

a) a lack of maturity and an underdeveloped sense of

responsibility are found in youth more often than in adults and are
more understandable among the young. These qualities often result
in impetuous and ill-considered actions and decisions.;

b) juveniles are more vulnerable or susceptible to negative

influences and outside pressures, including peer pressure;
 c) the character of a juvenile is not as well formed as that of an
adult. Personality traits of juveniles are more transitory, less fixed.

13. The age of 18 is the point where society draws the line for many
purposes between childhood and adulthood; it is the age at which the line
for death eligibility ought to rest.

14. The Constitution does not demand the avoidance of all risk of pain
in carrying out executions.

15. Punishments are cruel when they involve torture or a lingering

death; but the punishment of death is not cruel within the meaning of that
word as used in the Constitution.

16. It implies there something inhuman and barbarous, something

more than the mere extinguishment of life.

17. A condemned prisoner cannot successfully challenge a state’s

method of execution merely by showing a slightly or marginally safer
alternative.

18. Instead, the proffered alternatives must effectively address a

substantial risk of serious harm.

19. To qualify, the alternative procedure must be feasible, readily

implemented, and in fact significantly reduce a substantial risk of severe
pain.

a) If a state refuses to adopt such an alternative in the face of

these documented advantages, without a legitimate penological
justification for adhering to its current method of execution, then a
state’s refusal to change its method can be viewed as cruel and
unusual under the 8th Am.

20. In order for prisoners to successfully challenge a state’s method of

execution, they must:
 a) identify a known and available method of execution that
presents a substantially less severe risk of pain than the method the
state proposed to use; and

b) prove that the state’s current protocol presents a risk that is

sure or very likely to cause serious illness and needless suffering
amounting to an objectively intolerable risk of harm.

XI. DOUBLE JEOPARDY

A. INTRODUCTION

1. The Double Jeopardy Clause of the 5th Am states that “no person
shall be subject for the same offence to be twice put in jeopardy of life or
limb.”

2. It provides 3 separate protections:

a) it protects against a second prosecution for the same offense

after acquittal;

b) it protects against a second prosecution for the same offense

after conviction; and

c) it protects against multiple punishments for the same

offense.

3. The double jeopardy clause has its origins in the 3 common law
pleas of autrefois acquit, autrefois convict and pardon.

4. The primary purpose of the DJ clause was to protect the integrity of

a final judgment; there is a related interest of a Δ in avoiding multiple
prosecutions even where no final determination of guilt or innocence has
been made.

5. Reason: finality of judgment and to protect Δs.

 6. The trial judge’s characterization of his own action cannot control
the classification of the action; a Δ is acquitted only when the ruling judge
actually represents a resolution in the Δ’s favor, correct or not, of some or
all of the factual elements of the offense charged.

7. The DJ clause does not relieve a Δ from the consequences of his

voluntary choice.

8. Only criminal proceedings fall under DJ; civil proceedings do not

apply.

9. Although juvenile proceedings are not considered criminal, if the

juvenile is faced with the loss of liberty then DJ attaches.

10. Parole and Probation proceedings do not apply.

B. THE BASICS

1. The DJ clause does not prohibit the imposition of any additional

sanction that could, in common parlance, be described as punishment.

2. It protects only against the imposition of multiple criminal

punishments for the same offense.

3. In determining whether a particular punishment is criminal or civil,

a court must first ask whether the legislature, in establishing the
penalizing mechanism, indicated either expressly or impliedly a
preference for one label r the other; and second whether the statutory
scheme was so punitive either in purpose or effect as to transform what
was clearly intended as a civil remedy into a criminal penalty.

4. The factors used in determining this are:

a) whether the sanction involves an affirmative disability or

restraint;

b) whether it has historically been regarded as punishment;

c) whether it comes into play only on a finding of scienter

(mens rea);
 d) whether its operation will promote the traditional aims of
punishment—retribution and deterrence;

e) whether the behavior to which it applies is already a crime;

f) whether an alternative purpose to which it may be rationally

connected is assignable for it; and

g) whether it appears excessive in relation to the alternative

purpose assigned.

5. These factors must be considered in relation to the statute on its

face.

6. Only the clearest proof will suffice to override legislative intent and
transform what has been denominated a civil remedy into a criminal
penalty.

7. No one factor should be considered controlling as they may often

point in differing directions.

8. There are 2 possible approaches to determining whether 2 charges

constitute the same offense: One approach is to determine whether both
charges arose from the same conduct by the Δ. The other approach is to
determine whether both offenses require proof of the same elements.

9. The SC has adopted the same elements test, the Blockburger test:
The applicable rule is that where the same act or transaction constitutes a
violation of 2 distinct statutory provisions, the test to be applied to
determine whether there are 2 offenses or only 1 is whether each provision
requires proof of a fact which the other does not.
 BLOCK BURGER TEST

2 Different Crimes

A
B
Requires an A A Requires an
C
element the B B element the
other does Assault other does
C Offense #2 C
not D F not
Agg. Assault Assault w/ Intent to Kill
Offense #1 Offense #3

Lesser Included of
 10. A single act may be an offense against 2 statutes; and if each statute
requires proof of an additional fact which the other does no, an acquittal
or conviction under either statute does not exempt the Δ from prosecution
and punishment under the other.

C. NO RETRIAL FOLLOWING CONVICTION OR ACQUITTAL

1. The principle purpose of DJ is against gov’t oppression.

2. 2 additional purposes are to keep Δ from embarrassment, anxiety,

and financial ruin; and gov’t must do their job originally; no second bite at
the apple.

3. As a general rule, jeopardy attaches when the trial begins.

a) If it is a jury trial, when the jury is empaneled and sworn.

b) If it is a bench trial, when the judge begins to hear the

evidence.

4. When a court with jurisdiction enters an acquittal, an appellate

court cannot set aside the acquittal for retrial even if the acquittal is in
error.

5. An erroneous acquittal is still an acquittal. DJ prohibits a 2nd trial

where the gov’t didn’t enter sufficient evidence the first time.—Burks v.
U.S.

6. A retrial is also barred when an acquittal is based on juror

misconduct or jury nullification.

7. If the case is dismissed because of a trial error, that is different (a

decision on the merits was never reached).

8. It is only when the Δ will not face another trial that the prosecution
can appeal the dismissal of a case.

9. The prosecution can appeal the pretrial dismissal of a case or the

judge’s acquittal of a Δ after the jury has returned a guilty verdict.
 10. The DJ clause also bars retrying a Δ for the same offense unless (1)
the Δ is granted a retrial after a successful appeal, or (2) the trial judge
grants a motion for acquittal after the jury has already convicted the Δ.

11. If a Δ chooses to challenge the fairness of the procedures in his first

trial and seek a new trial with correct procedures, he is bound by that
choice and retrial is permitted.

D. EXCEPTIONS TO THE DOUBLE JEOPARDY RULE

1. The question whether under the DJ clause there can be a new trial
after a mistrial has been declared without the Δ’s request or consent
depends on whether there is a manifest necessity for the mistrial or the
ends of public justice would otherwise be defeated.

2. A hung jury = manifest necessity

3. Manifest necessity: a mistrial declared by the judge following the

jury’s declaration that it was unable to reach a verdict.

4. The manifest necessity standard provides sufficient protection to

the Δ’s interests in having his case finally decided by the jury first selected
while at the same time maintaining the public’s interest in fair trials
designed to end in just judgments.

5. Where circumstances develop not attributable to prosecutorial or

judicial overreaching, a motion by the Δ for mistrial is ordinarily assumed
to remove any barrier to prosecution, even if the Δ’s motion is necessitated
by prosecutorial or judicial error.

6. Traditional waiver concepts have little relevance where the Δ must

determine whether or not to request or consent to a mistrial in response to
judicial or prosecutorial error.

7. This is a “Hobson’s Choice”—either accept a necessarily prejudiced

jury or move for a mistrial and face the process of being tried at a later
time.
8. The important consideration is that the Δ retained primary control
over the course to be followed in the event of such error.

9. The DJ clause does protect a Δ against gov’t actions intended to

provoke mistrial requests and thereby to subject Δs to the substantial
burdens imposed by multiple prosecutions.

10. It bars retrial where bad-faith conduct by judge or prosecutor

threatens the harassment of an accused by successive prosecutions or
declaration of a mistrial so as to afford the prosecution a more favorable
opportunity to convict the Δ.

11. Prosecutorial misconduct that might be viewed as harassment or

overreaching, even if sufficient to justify a mistrial on the Δ’s motion, does
not bar retrial absent intent on the part of the prosecutor to subvert the
protections afforded by the DJ clause.

12. Only where the gov’t conduct in question is intended to “goad” the
Δ into moving for a mistrial mat a Δ raise the bar of DJ to a second trial
after having succeeded in aborting the first on his own motion.

13. The DJ clause does not bar retrial after a hung jury.

14. When the case has not been decided on the merits jeopardy never
terminated.

15. Even if a jury indicates that it would have likely acquitted on a

greater offense, but could not reach a verdict on a lesser offense, retrial is
allowed on the greater offense so long as no formal verdict is issued before
the mistrial is ordered.

16. The DJ clause does not offer a guarantee to the Δ that the State will
vindicate its societal interest in the enforcement of the criminal laws in one
proceeding.

17. The dual sovereignty doctrine is another exception to the DJ rule.

 18. The doctrine allows 2 different sovereigns to prosecute the Δ for the
same crime, because each sovereign has a separate and legitimate interst
in prosecuting the Δ.

19. State and federal authorities can prosecute a Δ for the same crime.

20. The dual sovereignty doctrine allows state and federal gov’ts to try
a Δ for the same offense and 2 different states to try a Δ for the same
offense.

21. The dual sovereign doctrine has 2 limitations:

a) first, if both sovereigns are working together in a way that

would make a second prosecution a “sham prosecution”; and

b) second, the DOJ has an internal policy known as the “petite

policy” that authorizes federal prosecutors to bring a successive
prosecution only when there are compelling reasons to do so and
there is approval from the AUSA General.

(1) The policy does not confer on a Δ the right to seek

dismissal of an indictment for alleged violations of the
federal authorities protocol.

E. MULTIPLE CHARGES AND CUMULATIVE PUNISHMENTS

1. The DJ clause does not bar a Δ from being charged with multiple
offenses in one trial even if they are the same under Blockburger.

2. It does preclude multiple trials.

3. It also precludes multiple punishments for the same offense.

4. Courts may not prescribe greater punishment than the legislature

intended.—Rutledge v. U.S.

5. Where 2 statutory provisions proscribe the same offense, a

legislature does not intend to impose 2 punishments for that offense.—
Rutledge v. U.S.
 6. A second conviction, even if it results in no greater sentence, is an
impermissible punishment.—Rutledge v. U.S.

F. COLLATERAL ESTOPPEL

1. Collateral Estoppel means that if an issue of ultimate fact has been

determined by a valid and final judgment, it cannot be relitigated by the
same parties in a future case.

2. Collateral estoppel is not to be applied with the hypertechnical and

archaic approach of a 19th century pleading book, but with realism and
rationality.

3. It requires a court to examine the record of a prior proceeding,

taking into account the pleadings, evidence, charge and other relevant
matter and conclude whether a rational jury could have grounded its
verdict upon an issue other than that which the Δ seeks to foreclose from
consideration.

4. If a Δ consents to have separate trials on multiple charges, collateral

estoppel does not apply.

5. A Δ may be retried after a hung jury because jeopardy was never

terminated.

XII. HABEAS CORPUS

A. INTRODUCTION

1. Habeas arises after a Δ has exhausted all state or federal procedural

options.

OPTIONS FOR CHARGES TO GO AWAY

1. Motion for judgment of acquittal

2. Motion for new trial
3. Appeal to higher court (mandatory or discretionary)
  function of reviewing court isn’t to determine guilt or
innocence
 If the appeal deals with the sufficiency of evidence, it is
whether viewing the evidence in the light most favorable to
the gov’t any rational trier of fact could have found that the
elements were proven BRD
 non-constitutional error and no or slight effect on verdict then
courts adopt a “harmless error” viewing
 constitutional errors used to be considered per se harmful but
this is not the approach used today. Now SC separates either
“trial error” or “structural error.”
 Harmless error analysis now applies to trial error.
 Structural error is per se harmful and requires automatic
reversal and optional new trial. A showing of prejudice is not
required.
o Structural error includes:
 admission of coerced confession;
 defective reasonable doubt instruction;
 discrimination in GJ selection;
 denial of public trial;
 denial of right to counsel;
 denial of self-representation (Faretta Rights);
 no disclosure of exculpatory evidence (Brady
violation)
4. Habeas Corpus
 file a petition for a writ of HC
 latin for “you have the body”
 only available for Δs in custody
 collateral proceeding/review because it is not a criminal
proceeding.
 It is civil.
 Can only be sought after all criminal proceedings have been
exhausted
 no presumption of innocence
 petitioner has burden of proof by preponderance
 Coram Nobis- is for a person who is not in custody (not an
inmate); standard is very high
B. THE ISSUES THAT MUST BE ADDRESSED IN ORDER FOR A
FEDERAL COURT TO GRANT HABEAS CORPUS RELIEF

1. A federal court considering a habeas petition must address all of

the following issues:

a) Is the habeas petition time barred?

b) Is it a first habeas petition by the individual or is it a

successive petition?

c) Has there been exhaustion of state procedures for all claims

presented in the habeas petition?

d) Does the petition rely on an already established rule of

criminal procedure, or does it seek recognition of a new rule?

e) Is it a claim that can be heard on habeas corpus?

f) Has there been a procedural default in the sense of a failure

to follow the required procedures of the forum, state or federal, in
which the person was convicted?

g) If the claim is heard, can the federal court hold an

evidentiary hearing, or is it limited to the record that was in the
state court? Can the federal court provide habeas corpus relief?

2. The Antiterrorism and Effective Death Penalty Act (AEDPA) is

subject to “equitable tolling.”—Holland v. Florida

3. A petitioner is entitled to equitable tolling only if he shows (1) that

he has been pursuing his rights diligently, and (2) that some extraordinary
circumstance stood in his way and prevented timely filing.

4. The flexibility inherent in equitable procedure enables courts to

meet new situations that demand equitable intervention, and to accord all
the relief necessary to correct particular injustices.
5. A garden variety claim of excusable neglect such as a simple
miscalculation that leads a lawyer to miss a filing deadline does not
warrant equitable tolling.

6. If a state prisoner files a 2nd or successive petition for HC and he is

arguing a new issue, it is dismissed.

a) Exception: (1) a new constitutional rule; (2) the rule has been
made retroactive by the SC; and (3) the claim was previously
unavailable.

7. A credible showing of actual innocence may allow a prisoner to

pursue his constitutional claims on the merits notwithstanding the
existence of a procedural bar to relief.

8. This rule, or fundamental miscarriage of justice exception, is

grounded in the equitable discretion of habeas courts to see that federal
constitutional errors do not result in the incarceration of innocent persons.

9. To invoke the miscarriage of justice exception, a petitioner must

show that it is more likely than not that no reasonable juror would have
convicted him in the light of the new evidence.

10. Unexplained delay in presenting new evidence bears on the

determination whether the petitioner has made the requisite showing.

11. A court may consider how the timing of the submission and the
likely credibility of a petitioner’s affiants bear on the probable reliability of
evidence of actual innocence.

12. The gateway should open only when a petition presents evidence
of innocence so strong that a court cannot have confidence in the outcome
of the trial unless the court is also satisfied that the trial was free of non-
harmless constitutional error.

13. The miscarriage of justice exception is used to overcome a

procedural bar.
14. There can be successive petitions on the grounds of mental
incompetence to be executed.—Panetti v. Quarterman

15. If an application is “second or successive” the petitioner must

obtain leave from the Court of Appeals before filing.

16. The DC must dismiss any claim presented in an authorized second

or successive application unless the applicant shows that the claim
satisfies certain statutory requirements.

17. A “second or successive” petition is related to the same proceeding.

An error made a second time is still a new error.

18. You must have totally exhausted all avenues of redress in state
courts otherwise they will be dismissed.

19. The reasoning for this: (1) comity: respect for state courts; state
courts participate in enforcing federal laws and protecting constitutional
interests; and (2) not to overload the federal docket.

20. Dismissal of the writ gives petitioners 2 options: (1) go back to state
courts then exhaust those and then resubmit; or (2) leave off the issues that
haven’t been addressed and then resubmit.

21. There are 2 exceptions to the general rule against retroactivity: (1)
new substantial rule of constitutional law; and (2) watershed rule of
criminal procedure.

22. A 4th Am search & seizure exclusionary rule issue isn’t able to be
raised in HC.

23. It will not be reviewed by DC if it has been fully litigated at the

state level.

24. There are 2 reasons a petitioner can’t raise new issues in HC: (1)
comity and (2) finality.

25. If you don’t raise an issue before the state courts it is procedurally
defaulted from HC.
26. To the greatest extent possible all issues which bear on this charge
should be determined in this proceeding: the accused is in the courtroom,
the jury is in the box the judge is on the bench, and the witnesses, having
been subpoenaed and duly sworn, await their turn to testify.

27. The “cause and prejudice” exception will afford an adequate

guarantee that the rule will not prevent a federal habeas court from
adjudicating for the first time the federal constitutional claim of a Δ who
in the absence of such an adjudication will be the victim of a miscarriage
of justice.

28. There must be adequate cause and the prejudice must be

substantial.

29. Cause is when one is disarmed by extraordinary circumstances

beyond their control.

30. A state prisoner who could show that he or she is probably actually
innocent should be able to secure relief regardless of the reason for the
state court procedural default.

31. In an extraordinary case, where a constitutional violation has

probably resulted in the conviction of one who is actually innocent, a
federal habeas court may grant the writ even in the absence of a showing
of cause for the procedural default.

32. There is no need for a showing of cause and prejudice if the Δ

doesn’t become aware of the factual predicate until after the proceedings.

33. The fundamental miscarriage of justice exception is available only

where the prisoner supplements his constitutional claim with a colorable
showing of factual innocence.

34. The Court has never held that it extends to freestanding claims of
actual innocence.

35. A death sentence does not require a different standard of review.

36. Criminal process is lacking only where it offends some principle of
justice so rooted in the traditions and conscience of our people as to be
ranked as fundamental.