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Adv. Crim Pro Outline
Adv. Crim Pro Outline
INTRO
A. Crim pro focuses on how we will arrive at a punishment for proscribe
behavior.
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.
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.
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.
2. Ethical Limits
3. Constitutional Limits
g) Vindictive Prosecution
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.
2. Operation of the GJ
5. Preliminary Hearing
f) Once the magistrate or judge finds PC, the Δ is” bound over”
for trial on charges filed by the prosecutor in an information.
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
3. Conflicting Defenses
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.
(2) They can try the Δs jointly but forgo use of the
confession.
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.
11. A “variance” occurs when the evidence at trial proves facts other
than those alleged in the indictment.
A. INTRODUCTION
7. The SC has never held that the “no excessive bail” clause of the 8th
Am applies to state prosecutions.
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.
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.
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
i) Under the Bail Reform Act of 1984, the burden shifts to the Δ
to show why he should be released pending appeal.
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.
d) Enemy Combatants
A. INTRO
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.
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.
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.
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
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.
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.
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
A. INTRO
B. PLEA BARGAINING
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.
C. GUILTY PLEAS
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
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.
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.
A. INTRO
1. The 6th Am provides that “in all criminal prosecutions, the accused
shall enjoy the right to a speedy and public trial.”
4. The SC has held that speedy trial rights aren’t triggered until after a
Δ has been formally charged.
6. The 2nd period of delay runs from the filing of charges until the time
that trial begins.
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:
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.
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.
a) length of delay,
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
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.
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.
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.
B. APPOINTMENT OF COUNSEL
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.
a) of loyalty;
E. RIGHT OF SELF-REPRESENTATION
4. Trial Court has a right to appoint standby counsel in the event that
the Δ has decided to represent himself.—McKaskle v. Wiggins
7. Levels of Competency:
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.”
5. FRCP 23(a) provides that waiver of the jury trial right is permitted
but the government must consent and the court must approve.
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]
4. Ways to remove:
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.
13. Batson has been extended to include gender, religion, and sexual
orientation.
1. It is not required that the jurors be totally ignorant of the facts and
issues involved.—Irvin v. Dowd
4. Factors to consider:
a) the size and characteristics of the community in which the
crime occurred,
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.
a) First, the criminal trial historically has been open to the press
and general public.
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
13. The court must consider less restrictive options before going to the
extreme.
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.
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.
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.
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
X. SENTENCING
A. INTRODUCTION
1. Authority to sentence is shared between the legislature and the
judiciary.
5. As long as the factors the judge considers doesn’t change the max
amount of time the Δ could have gotten already.
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
1. The 8th Am provides that “excessive bail shall not be required, nor
excessive fines imposed, nor cruel and unusual punishments inflicted.”
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.
15. Must look at the nature of crimes and if the Δ is in the class of
people the statute intends to affect.
a) if it is unusually severe;
10. There are 2 reasons consistent with the legislative consensus that
the mentally retarded should be categorically excluded from execution:
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.
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.”
3. The double jeopardy clause has its origins in the 3 common law
pleas of autrefois acquit, autrefois convict and pardon.
B. THE BASICS
6. Only the clearest proof will suffice to override legislative intent and
transform what has been denominated a civil remedy into a criminal
penalty.
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.
8. It is only when the Δ will not face another trial that the prosecution
can appeal the dismissal of a case.
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.
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.
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.
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.
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.
F. COLLATERAL ESTOPPEL
A. INTRODUCTION
a) Exception: (1) a new constitutional rule; (2) the rule has been
made retroactive by the SC; and (3) the claim was previously
unavailable.
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.
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.
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.
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.
34. The Court has never held that it extends to freestanding claims of
actual innocence.