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Criminal Procedure: Judicial Process
Terms in this set (300)
What is the criminal trial process?
What is prosecutorial discretion?
The prosecutor's power in terms of charging, bargaining with, and sentencing the accused—cannot prosecute a charge that they know is not supported by probable cause
What is deferred prosecution?
A process in which the prosecutor has grounds to bring charges against Δ, but instead places him on a type of probation for a given amount of time to prove that he is not a threat to the public; if Δ successfully completes probation, the charges against him are never brought to court
This form of prosecution is usually offered to Δs that are contrite and have no prior record of criminal activity
What are persistent felony offender statutes?
Statutes that are combined with charges that Δ is facing in situations where there is an existing felony record
They make the punishment that Δ is facing more severe
What is selective prosecution?
An Equal Protection Clause challenge in which Δ claims that the prosecutor had the option to bring charges against several viable candidates, but chose to only seek a verdict against this one Δ in particular
What are the three elements of selective prosecution?
1. Other similarly situated people were NOT prosecuted, but this particular Δ was (Δ cannot have opted out of a plea bargain, committed a different role in the crime, etc.)
2. The reason this Δ was chosen was purposeful, for a particular reason
3. The reason for choosing this Δ was based on some arbitrary classification (think of situations in which Δ's First Amendment rights would be violated—race, religion, gender, etc.)
What is vindictive prosecution?
A claim by Δ that the prosecutor has been vindictive after Δ has been initially charged (has to have been intentional)—more serious charges were placed against Δ in retaliation for the exercise of a constitutional or statutory right (see United States v. Goodwin)
two ways to win under vindictive prosecution:
1. Show that the prosecutor was actually vindictive
2. Show that the facts are sufficient in creating a rebuttable presumption of vindictiveness
What is an initial appearance?
The first time in a felony procedure defendant appears in court after he has been arrested
The major function of an initial appearance is to provide Δ with information—more ministerial than adversarial
What happens at an initial appearance?
Announcement of charges, right to counsel, right to a preliminary hearing, right to remain silent, right against self-incrimination, scheduling of future proceedings (in federal courts, the preliminary trial has to take place within 10 days if Δ is in custody, 20 if not)
At this time, a pre-trial release and counsel appointment may be arranged—this is the point in the proceedings where the right to counsel attaches
If Δ is a juvenile, the initial appearance may be used to ensure that parents or guardians have been notified
What is the Gerstein Probable Cause Determination?
A situtation in which defendant is arrested by the police without a warrant. The prosecutor then determines, based on the allegations and amount of evidence that there is probable cause to justify the arrest.
A judge is consulted as to the probable cause after the arrest has taken place. This can occur ex parte.
How much time does the judge have to determine probable cause?
The judge must determine that the arrest was supported by probable cause (i.e., "sufficient proof to cause a prudent person to believe Δ committed the offense") within 48 hours of the arrest (if this does not occur, the prosecution then has the burden of showing either a bona fide emergency or extenuating circumstance that prevented the judicial determination) (initially [i.e., under 48 hours], the burden is on Δ to show unreasonable delay)
o But 48 hours doesn't necessarily cut it—if Δ can prove delay, even under 48 hours, for reason to gather more supporting evidence, ill-will, or delay for delay's sake, he may prevail
Δ does not have to be involved at all for this determination to take place
What is the remedy for a time violation for the intial appearance?
The usual remedy for violation of the right to a prompt initial appearance is exclusion of evidence or confessions acquired during the time of impermissible delay
what is pre-trial release?
A situation in which defendant is not held in custody to await his trial, but released into the public under the assumption that he will reappear before the court to be tried.
What rule governs pre-trial release?
Pre-trial release is governed by the Federal Rules of Criminal Procedure, Rule 5(d)(1)(C)
What is bail
A monetary condition that is a middle ground between Δ's liberty and society's interest in ensuring that this person will show up to trial
What is a bail hearing?
An informal proceeding in which the court determines whether or not defendant is a good candidate for pre-trial release.
What kinds of things happen at a bail hearing?
This is an informal procedure (i.e., the general rules of evidence do not apply), but it is usually the first time both sides have the opportunity to present arguments related to (1) whether the accused should be released pending trial, and (2) if release is deemed appropriate, the terms and conditions or said release, which may include the specific dollar amount
Sometimes this function is served by a pre-trial release service agency who will interview Δ and gather information about his past—they may even run programs to supervise and assist Δ
Δ is usually not represented by counsel at these hearings—but if a decision is made to detain Δ, the issue may be revisited when counsel is made available
What is a full cash bond?
A form of bail in which Δ must pay the full amount to the court upfront in order to be released; if Δ appears in court as scheduled, he or she gets back all the deposited money
If not, it is forfeited
What is a deposit bond?
A form of bail in which Δ is required to deposit a percentage of the full bond (usually 10%) with the court
What is a surety bond?
The "traditional" form of bail in which a third party, usually a bail bonding company, signs a promissory note to the court for the full bail amount and then charges Δ a percentage of that full amount as a fee (Δ does not ever recover this money)—the surety usually must meet statutory and court-ordered criteria to ensure its financial soundness
What is an unsecured bond?
A form of bail in which Δ is released from custody upon his promise to pay the bond amount if he or she fails to appear in court; Δ pays no money upfront and money only changes hands if he or she does not appear in court as scheduled
What it a release on recognizance (R.O.R.)?
A process in which the court releases Δ based only on the personal promise that he or she will appear in court as required
Is there money in ror?
There is no money involved in this, but the court may attach additional conditions to release such as restriction on travel or maintaining employment—this is a preferred method in some states
What will they be charged with if for failing to appear as scheduled?
they will be charged with failure to appear (FTA) or "bail jumping"
What is a citation release?
A process whereby a person is arrested for a minor criminal offense and given a "citation" by the arresting officer
What is a conditional release?
A release that is subject to conditions that are not monetary.
What do the conditions include?
These conditions can include a curfew, no contact with the victims or jury, periodic reporting to law enforcement agencies, remaining in the custody of a designated person, undergoing medical treatment, admittance to AA, location monitoring, etc.
Violation of such conditions can result in arrest and confinement pending trial or citation for contempt of court
More affluent defendants who can afford drug testing, ankle bracelets, etc. enjoy a distinct advantage—a court is more likely to release them
What is a property bond?
A form of bail in which Δ posts property instead of cash in exchange for their release
What is the Bail Reform Act of 1984?
It permits the detention of defendants who present a risk of harm to society.
Judges must order pretrial release unless
they determine that such release will not reasonably assure the appearance of the person as required or will endanger the safety of any other person or the community [§1342(b)]
two threats of bail?
flight and harm
what happens if one of the above threats is probable?
If the judge determines that 1 of these threats is a probability, he still must issue release, but impose conditions [§1342(c)]
o If either side contests any of the conditions they make their best case against it based on the facts they have at the time [§1342(g)]
What are the statutes that deal with pretrial release and how is pretrial release determined?
§1342(f)(1) bases release on the type of offense alleged
§1342(f)(2) bases release on the character of the offender
When the risk is one of safety, the prosecution must prove:
When the risk is one of safety, the prosecution must prove by clear and convincing evidence that Δ is dangerous to society
§1342(e) has some rebuttable presumptions—if Δ committed one of the crimes listed in (f)(1), it is presumed they are dangerous
When the risk is one of flight, the prosecution must prove
by a preponderance of evidence that Δ will jump bail
If Δ has committed a crime involving drugs or firearms for which the maximum term of imprisonment is 10 years or more, there is a presumption that Δ is dangerous AND a flight risk
If the initial appearance takes place after an indictment has already been handed down, it's a lot easier for the prosecutor to prove these risks because the indictment acts as probable cause
what model do courts use for pre-trial release court conditions?
courts usually don't apply the evidence rules at pretrial hearings, only require a showing of probable cause, but afford Δ all their usual rights
What are the 3 main exceptions to normal bail circumstances?
1. Capital Cases:
3. Awaiting Sentencing or Pursuit of Appeal
What is a preliminary hearing?
An adversarial proceeding that is held shortly after the arrest when a felony is charged. If a person is charged with a misdemeanor they go straight from initial appearance to trial. Resembles a bench trial. Judges determination of probable cause is called a "bindover", turning the case over to the grand jury.
What is the purpose of the preliminary hearing?
to determine whether or not there is sufficient evidence that a crime was committed and that this defendant committed it.
What kind of evidence is admissible at a preliminary hearing?
In most jurisdictions, the rules of evidence do not attach to preliminary hearings, so pretty much everything is allowed in
A lot of hearsay
What is the prosecutor's burden of proof at a preliminary hearing?
Most jurisdictions say that the prosecutor must show probable cause, but this requires a less convincing proof than beyond a reasonable doubt
What are defendant's rights at the pretrial stage?
Much more limited than at trial. For example, defendant can testify on his own behalf, but cannot object to evidence.
But if the defense counsel does not move to have some or all charges dismissed or reduced at the preliminary stage, those motions are considered waived.
Does defendant have a right to counsel at a preliminary hearing?
Yes, but this is dependent on whether or not the jurisdiction actually grants a preliminary hearing. (preliminary hearing is not a right).
What are defendants 3 main contentions at pretrial?
1. The crime alleged did not occur
2. If the crime did occur, it was not this defendant who committed it
3. Venue challenge
What Federal Rule of Criminal Procedure governs grand jury hearings?
For how long do grand juries sit?
Federal grand juries sit for 18 months and may be extended for 6 months more
This means that if a person is called to testify before the grand jury and refuses, they may be held in contempt and imprisoned for the next 18 months (i.e., the life of the grand jury)
In what situations may a grand jury indict a defendant?
If a preliminary hearing is held and probable cause is found
If a preliminary hearing is held and probable cause is not found
If no preliminary hearing is held
This is called submission—the prosecutor does not want to tip off Δ that he is going to have charges brought against him, so he is not arrested until after the indictment
What is the prosecutor's role in a grand jury hearing?
Grand juries are generally thought of as extensions of the prosecutor (a rubber stamp—grand juries indict in 99% of cases)
Why are grand juries an extension of the prosecutor?
The grand jury does not have to hear both sides of the story so they are generally swayed to conform with the prosecutor's way of thinking
The prosecutor selects the witnesses, selects the documents for review, selects the evidence, instructs the jurors on the law, and actually tells the jurors whether there is a case or not
o The only time a judge is present at a grand jury hearing is to charge the jurors with their duties
Does the prosecutor have a duty to present exculpatory evidence to the grand jury?
Does the prosecutor have a duty to present exculpatory evidence to the grand jury?
Do the rules of evidence apply to grand juries?
Not under the law of Costello
Defendant is afforded no rights at grand jury hearings and does not even have to be present
But the grand jury has the power to subpoena people, one of which may be defendant.
o Defendant may request that the jury allow him to testify, but if they grant his request he may in turn be required to waive his Fifth Amendment right and he will not be permitted to have counsel assist him
• But it is extremely common for defendant to write down what the prosecution asks, leave the room, and consult with counsel after every single question.
The grand jury also has the power to hold people in contempt and grant immunity.
May defendant waive his right to a grand jury trial?
Yes, defendant may elect to move forward based on an information to speed up trial proceedings, to preserve witnesses, and to sweeten a plea deal
What are the 3 kinds of charging documents?
What is a presentment?
a formal charging document issued by a grand jury in cases that have not been initiated by the prosecutor; defendant cannot appeal a presentment.
What is an indictment?
a formal charging document issued by a grand jury in cases that have been initiated by the prosecutor; defendant cannot appeal an indictment, but he can make a motion to dismiss.
What is an information?
a formal charging document issued by the prosecution (sometime replaced by a complaint).
Is an indictment/information always a requirement?
No, only in federal, felony cases (less than half the states require an information or indictment for the charging of felonies and some do not even offer the possibility of a grand jury trial)
Probable cause does not have to be found for misdemeanors
How may a grand jury indictment be dismissed?
Based on an Equal Protection violation in the selection of grand jurors, or
If a majority of the evidence introduced was perjured and:
1. The prosecutor knew he or she was presenting perjured testimony, AND
2. The total amount of the evidence minus the perjury is not enough to support a finding of probable cause
After an indictment has been issued, how soon must defendant be arrested?
Within 30 days
What happens if a grand jury acquits defendant?
An acquittal by a grand jury is not an end-all-be-all because double jeopardy does not attach to pretrial stages
The prosecutor may reintroduce their case to the next grand jury (but they may run the risk of being accused of harassment)
What is a subpoena?
A document formally charging a person with the duty to either appear in court to testify or produce document
What is a subpoena ad testificandum
duty to testify
What is a subpoena duces tecum
duty to produce documents
What is the process of issuing a subpoena?
Subpoenas are issued by the court clerk at the request of the prosecutor or the grand jury
The court generally does not review a subpoena unless the person being subpoenaed makes a motion to have it quashed (in this sense, a subpoena is not a court order [failure to comply does not necessarily result in sanctions])
When a subpoena is challenged, the content of the requested information IS NOT RELEVANT
What happens when a subpoena is challenged?
The motion to quash must be denied unless the district court determines that there is no reasonable possibility that the category of materials that the government is seeking will produce information relevant to the general subject of the grand jury's investigation
The burden of proving this is on the receiver of the subpoena seeking to have it quashed
How should you advice your client to respond to a subpoena?
You first want to ask the prosecutor why the subpoena was issued and what information they already have about your client
You also want to know what kind of judge is overseeing the grand jury—their background could make a difference
Also want to know what the remaining life of the grand jury; so that if your client doesn't comply, they know what they may be facing
What is immunity?
a prosecutor's promise to not prosecute a witness based on the testimony that they give.
How does a prosecutor determine whether or not to grant immunity?
The prosecutor must determine:
That the testimony or other information from such an individual may be necessary to the public interest, and
Such an individual has refused or is likely to refuse to testify or provide other information on the basis of his privilege against self-incrimination.
The prosecutor always want to try to offer immunity to the lowest level of criminal available - but this person needs to be able to provide testimony that will be crucial in convicting a bigger fish.
What is the process for properly ascertaining immunity?
The witness must be subpoenaed
The witness must claim their Fifth Amendment privilege
The prosecutor must apply for immunity from the court
There must be a hearing to determine whether immunity will be granted
Immunity must be granted by the court
What is a proffer?
A situation in which the prosecutor gets to preview the testimony before they grant.
What is transactional immunity?
immunity that protects the witness from prosecutions for or on account of any transaction, matter, or thing concerning which he may testify or produce evidence. "total bath"
Immunity that protects the witness from having their testimony or other information used against them in any criminal case, except a prosecution for perjury, giving false statements, or otherwise failing to comply with the order.
Immunity that provides a witness protection from any charges, in exchange for information they are sitting on. Not really an option.
a person held in civil contempt of court is held in jail until they either testify or until the grand jury's term has ended.
a person held in criminal contempt of court is punished for defying the court and may not be released when they do decide to comply or may be made to pay a fine.
What is joinder?
the process of joining multiple people or crimes together into one indictment or trial.
Which provision of Rule 8 deals with indictment of multiple offenses?
The indictment may charge a defendant in separate counts with 2 or more offenses if the offenses charged are of the same or similar character, or are based on the same act or transaction, or are connected with or constitute parts of a common scheme or plans (this is PERMISSIVE—Δ has no right to have these consolidated)
What is meant by "common scheme or plan"?
When the commission of one of the offenses is either dependent upon or necessarily led to the commission of the other
Look at the timing of each offense (the further apart they are temporally, the more likely it is that they were not part of a common scheme of plan)
There has to be something more than defendant's participation in both
What is meant by similar character?
must consider such factors as the elements of the offenses, the temporal proximity of the acts, the likelihood and extent of evidentiary overlap, the physical location of the acts, the modes of carrying out the crimes, and the identity of the victims
which provision of rule 8 deals with multiple Ds being indicted together?
8b: says that the indictment may charge 2 or more ds if they are alleged to have participated in teh same act or transaction or in the same series of acts or transactions, constituted an offense or offenses.
All ds need not be charged in each cound.
**usually always involves conspiracy
Which rule applies to move to consolidate multiple charges
Because the joinder of offenses rule is permissive rather than mandatory, a D has no right to have all alleged offenses tried together. However a d's motion to consolidate charged under rule 13 may succeed if the charges could have been brought together.
What rule allows a motion to sever joined charges?
if joinder satisfies rule 8a, the D may still seek a severance of the offenses from what is described as prejudicial joinder per rule 14
What is severance?
the process of undoing joinder. Governed by rule 14
how does d file for severance ?
D must motion to sever in a timely manner or will be considered waived.
What is the spill-over effect
when evidence that would not be permitted in one case is allowed to be introduced when the case is combined with another in which the evidence would be permitted.
What must D prove in order to be granted severance?
severance is acceptable if joinder would prejudice D
motion to sever joined charges
if the joinder satisfies rule 8b, one or more of teh joined ds may still seek a severance from what is described as prejudicial joinder per rule 14 based upon specific allegations of prejudice in a joint trial.
what are three types of prejudice that D may face due to joinder of offenses?
1. the jury may confuse and cumulate the evidence and convict D of one or both crimes when it would not have convicted him of either if it could have properly kept the evidence segregated.
2. D may be confounded in presenting defenses, as where he desires to assert his privilege against self-incrimination with respect to one crime, but not the other.
3. the jury may conclude that D is guilty of one crime and then find him guilty of another simply by assuming he has a criminal nature.
What are the 4 types of prejudice that D may face due to joinder of Ds?
1. one D may make an inculpatory statement against his co-defendant that otherwise would be impermissible.
2. the Ds may present conflicting and irreconcilable defenses
3. if only 1 D testifies, the jury may draw an adverse inference from the other silence
4. if the jury thinks one of the Ds is particularly guilty, they may find the other guilty by association.
what are the possible reasons for severance?
1. D would like to testify for one charge, but not all (think joinder of offenses)
2. D will be found guilty of 1 charge, and then all others based on "criminal nature"(think joinder of offenses)
3. D will be found guilty by association (think joinder of Ds)
4. D has an antagonistic defenses - defendants offered 2 offenses which offset each other and create doubt in the jury's mind as the D's credibility (think joinder of offenses or Ds)
What happens if one defendant makes an out-of-court confession which implicates the other, then decides not to testify at trial?
In this situation, the non-confessing Defendant will not have a chance to cross-examine the confessor on the stand and it is likely that it will be taken as evidence of guilt against the implicated party
There are three options in this situations; the non-confessing defendant may:
1. Request separate trials for each defendant (but then the confessor will likely be called as a witness at the non-confessor's trial)
2. Request that the prosecutor not be allowed to introduce the confession at the non-confessor's trial (but this is very unlikely)
3. Request redaction—the non-confessing party's name will be taken out of the confession
What is brutonizing?
The procedure in which the non-confessing party's name is removed from the confessing party's statement bf it is admitted as evidence.
Must eliminate all references to the non-confessing party.
The applies to situations in which the confessing party refuses to testify at trial - if however, the confessing party does testify at trial, the entire non-redacted version is admitted into evidence
motion to consolidate mulitple Ds
because of the joinder of defendants rule is permissive rather than mandatory, a D has no right to have a trial of all alleged offenses tried together with another D. However, a motion to consolidate teh charges under rule 13 may succeed if the Ds' charged could have been brought together.
What are the 3 sources of criminal discovery:
1. The U.S. Constitution
2. Statutes (in the case of formal discovery)
3. The trial court's authority
What Rule of Criminal Procedure deals with discovery?
Rule 16 (see page 317)
Pre-trial discovery is aimed at eliminating continuances, alerting both parties to information they should be aware of, and putting the defense on equal footing with the prosecution—the main drawback to pretrial discovery is that is encourages evidence tampering
What are the main concepts of criminal discovery?
Mutual: both sides have to provide certain information after correct procedures have been followed (if you request it, you also must be prepared to hand it over [so long as this does not offend the Fifth Amendment]—this means if Δ has evidence that they don't want the prosecution getting their hands on, they better not request it)
The process is initiated by Δ making a motion or request
Δ may not request evidence before he has been formally charged
Continuing: after it has been requested, both sides must disclose information as it becomes available throughout the trial process (not a one-and-done concept)
This means, as a defense counsel, you want to request the information you seek as early on in litigation as possible, i.e., immediately after the prosecution's pretrial motions, after the prosecution's opening statements, and after closing statements
what are the three type of discovery?
what is formal discovery
generally codified in a jurisdictions statutes or in the rules of criminal procedure
What is informal discovery
when long-standing relationships between prosecutors and defense attorneys facilitate the sharing of information instead of relying on a formal procedure
What is open file practice
simply giving opposing counsel access to all or most of your materials
May the prosecution suppress evidence that they know to be favorable/exculpatory to Δ?
No, per Brady v. Maryland
The suppression of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or punishment, irrespective of the good faith or bad faith of the prosecution
This mitigating evidence is called "Brady" material
U.S. v. Bagley took this a step further and determined that even if defendant does not request the information, the prosecutor has a duty to turn over anything that is favorable to defendant as a requirement of Due Process
What is "favorable" evidence, for purposes of Brady material?
Evidence that is non-neutral
An example would be a negative test result—has to be disclosed
Test results that are inconclusive—do not have to be disclosed
What is meant by "material to guilt or punishment"?
Information that is relevant to sentencing, as in it would change the sentence rendered if it were disclosed, is material
Evidence that would mitigate sentencing is material (i.e., doesn't only include evidence that would have resulted in an acquittal)
Evidence that would impeach a witness is material
This includes any information that is inconsistent with a witness' testimony or any prior statement pertaining to the case
Anything about a person's character biases
Anything that undermines the expertise of a prosecution expert
This information must be in the actual or constructive possession of the government
If impeachment of this one single witness would not be seriously detrimental to the prosecution's case, however, it may not be material
Bagley promulgates the rule that materiality begs the question, "Had this information been disclosed, is there a reasonable probability that the result of the proceeding would have been different?"
"Reasonable probability"=a probability sufficient to undermine confidence in the outcome
The defense cannot be aware of what the information is before they request it—otherwise, it is presumed they could have gotten it from a source other than the prosecution and it not being handed over in discovery is not considered a Brady violation
What are examples of situations in which certain types of evidence may be viewed as exculpatory?
When Δ is claiming:
The crime never happened; anything that would indicate this is exculpatory
Crime was committed, but not by Δ; alibi information and negative forensic evidence are exculpatory
Crime was committed, ∆ did it, but it wasn't legally a crime; self-defense information is exculpatory
Crime was committed, ∆ did it, but what the ∆ did was not the crime charged here (i.e., it was the lesser offense); mitigating factors are exculpatory
Crime occurred, ∆ did it, but he's not legally responsible for it; insanity information is exculpatory
When must the prosecution turn over exculpatory evidence?
The obligation under Brady is ongoing, so this evidence is required to be turned over whenever it is discovered
What must the defense do if they request information but the prosecution refuses to turn it over?
Get the judge involved through in-camera investigation
The prosecution should not be permitted to call the shots on what is material and what is not
What is a bill of particulars?
A formal request for more information about the charges
The defense files this document when the indictment is not specific enough as to the charges against Δ—helps Δ if he later needs to make a double jeopardy claim and while he is building his defense (can't defend yourself against something you are unaware you are being charged of)
These are particularly different in jurisdictions that use form indictments
Whatever the prosecution hands over in response to a motion for a bill of particulars, they are bound to (this means their proof must support whatever they are claiming in the bill—this helps eliminate surprise at trial)
If Δ wants to make a claim, he has the burden of proving that the difference in evidence prejudiced him
The motion must be filed with 10 days of arraignment
Most of the time the court will deem the indictment to be sufficient and thereby deny the motion for a bill of particulars—if Δ later wants to show abuse of discretion by this action he must show actual surprise at trial
Bills of particulars are one of the only criminal discovery documents that is not mutual—Δ requests it from the prosecution, not the other way around
What types of information are not subject to disclosure?
Work product, Δ's own statements (if they are in the possession of the defense), the identity of confidential informants, and grand jury testimony
This is the minimum, the court may grant a protective order for certain pieces of evidence if it feels is should be shielded—the court can do this "for good cause"
This can take the form of denial, restriction, deferral, or inspection
Usually takes place after an ex parte process since there aren't any real guidelines
Usually, the court has two options:
o Limit the amount of information that is discoverable
o Order Δ not to contact witnesses or otherwise tamper with evidence
What are three types of statements?
D's statements in the prosecution's possession. Must ALWAYS be turned over.
1. written or recorded
2. oral statements made in an interrogation
3. written records of oral statement made in interrogations
D must know that the person thye made the statements to was an agent of the government
4. recorded statements made to te grand jury
D's statements in defense counsel's possession: the NEVER have to be turned over
Third party statements: these NEVER have to be turned over by the prosecution unless the statements would be considered brady material.
Does the prosecution's test results have to turned over in discovery?
The prosecution must provide D with results and reports that are within its possession and that it plans on using at trial.
Does the defendant's test result have to be turned over to the proseuction?
Yes, the d as an obligation of giving the prosecution an tests that are in the defenses possession. (once the prosecution has turned over theirs)
What is the standard for each
D: gets all tests that are considered material (brady)
Prosecution: only gets tests that are proof (higher standard)
What info pertaining to expert witnesses must be turned over
intent to rely on expert witness' opinion testimony
content of that testimony
the basis of that testimony
the qualification of the expert witness
what are the rules of discovery in regards to documents and objects?
to be discoverable the items must:
Be in government's possession; and
be material to preparation of defense
be intended for use as evidence by the government; or
belong to or be obtained from d
the government may only obtain physical evidence that the D plans to use as evidence in chief
production of these is triggered by defense request
What are the elements that D must meet to have gain discovery of items within the governments possession, custody, or control?
the information must:
be within the possession, custody or control of the government and
the prosecution must know or by the exercise of due diligence could know of its existence.
How does the prosecution gain discovery?
it is conditioned upon whether the defense has been granted like discovery under 16a. If the D files no motion or reuqiest to discover the prosecution's evidence, the prosecution will have no right to discover defense evidence. If, however, the defendant has been granted discovery the prosecution may be granted reciprocal right to discovery.
What types of physical evidence are available for discovery?
prior criminal records
witness lists - neither side must provide unless the witness is an expert
EXCEPTION: in federal, capital cases the government must provide a list of witnesses; this exception is not mutual.
A person's physical characteristic (ie hair and blood samples)
Other information: some state go above rule 16.
This may inclue copies of documents
What is rule 12
notice of governments intent to use evidence
(A) At the Government's Discretion. At the arraignment or as soon afterward as practicable, the government may notify the defendant of its intent to use specified evidence at trial in order to afford the defendant an opportunity to object before trial under Rule 12(b)(3)(C).
(B) At the Defendant's Request. At the arraignment or as soon afterward as practicable, the defendant may, in order to have an opportunity to move to suppress evidence under Rule 12(b)(3)(C), request notice of the government's intent to use (in its evidence-in-chief at trial) any evidence that the defendant may be entitled to discover under Rule 16
What is rule 17
(c) Producing Documents and Objects
(1) In General. A subpoena may order the witness to produce and books, papers, documents, data, or other objects the subpoena designates. The court may direct the witness to produce the designated items in court before trial or before they are to be offered in evidence. When the items arrive, the court may permit the parties and their attorneys to inspect all or part of them.
(2) Quashing or Modifying the Subpoena. On motion made promptly, the court may quash or modify the subpoena if compliance would be unreasonable or oppressive.
What is information not subject to a subpoena
(h) Information Not Subject to a Subpoena. No party may subpoena a statement of a witness or of a prospective witness under this rule. Rule 26.2 governs the production of the statement.
What happens if a party fails to comply with the discovery rules?
Rule 16(d)(2): the court may:
Order that party to permit the discovery or inspection; specify its time, place and manner; and prescribe other just terms and conditions;
Grant a continuance;
Prohibit that party from introducing the undisclosed evidence; or
Enter any other order that is just under the circumstances
Must defendant disclose their intent to use an alibi along with its content?
Yes, the defendant must disclose its intent to raise the defense of alibi under rule 12.1.
Disclosure rules do not violate the 5th amendment even thought he defendant has to disclose the information before trial.
How does the alibi process work?
The process is initiated by the prosecution's request for such information
D must disclose the names and addresses he intends to use to establish his alibi
This rule is reciprocal.
If the prosecution become aware of D's alibi, it may be able to build a stronger case against him - but on the flip side, the prosecution may give serious weight to the alibi and drop the charges before they go to the court .
What rules govern a notice of insanity defense
12.2 requires a defendant to give advance notice about the intent to rely on a defense of insanity, or the intent to introduce expert testimony that he lacked the mental state for the offense
how does rule 12.2 work?
The D must notify the prosecutor in writing of his intent without the prosecutor initiating a request.
The trial judge may order the defendant to submit to a mental exam, but any statements to the examiner are inadmissible on any issue other than his mental condition.
Defendant cannot withdraw his defense of insanity.
What is the jencks act?
18 U.S.C. §3500 and Rule 26.2
It provides either side the right to examine and use any statement of a preliminary hearing testifying witness that relates to the subject of the testimony and is in the possession of the party calling the witness
Disclosure takes place after the witness has testified on direct examination
Don't want Δ to know before-hand because it may compromise the witness' safety
What is the process of enacting the Jencks Act
Either side may move to have the opposing side's witnesses' earlier statements be disclosed.
What is double jeopardy
a situation in which a person faces the judicial process twice for the same offense
What does the fifth amendment say about double jeopardy?
no person shall be subject for the same offense to be twice put in jeopardy of life or limb.
Applicable to the states through the 14th amendment
Rationale- government should not keep retrying until they obtain the verdict they want.
What are the three thins double jeopardy protects against?
1. a second prosecution for the some offense after acquittal
2. a second prosecution for the same offense after conviction
3. multiple punishments for the same offense
When does double jeopardy attach?
Jury: Jeopardy attaches when the jury is selected and sworn.
Non-jury: jeopardy attaches when the first witness for the prosecution is sworn in
plea deals: jeopardy attaches when D's plea of guilt is accepted and a judge enters it on the record. (basically accepts plea + sentencing occurs).
What happens if the judge or jury finds D not guilty?
absolute finality; bars retrial on the same issue in the same jurisdiction
Does double jeopardy attach when the judge grants a motion for acquittal notwithstanding the jury's verdict?
No: the government has to be able to contest this judgment; if they win on appeal , the guilty verdict is reinstated.
what if the case is dismissed?
If a case is dismissed based on some factual elements of the offense charged, jeopardy attaches.
What happens when a judge orders a mistrial?
When a judge orders a mistrial, the immediate case ends without dismissing any of the charges against D.
Jeopardy does not bar a second trial here.
But in order for jeopardy to not attach, the proof must show there was a manifest necessity for mistrial.
This means there must be no other alternative for solving the problem than ordering a mistrial.
what happens if the judge denies a motion for mistrial?
if d is convicted, then he has a right to appeal and D can show there was a manifest necessity for mistrial.
what if the d request a mistrial and it is granted?
when the D asks for a mistrial and it is granted, then jeopardy does not attach.
What if D was intentionally provoked by the prosecution into requesting a mistrial?
The sole purpose of the prosecutor must be to goad D into moving for mistrial. This is a higher standard than bad faith or harassment. The judge will decide on the provocation and if proven, jeopardy will attach.
why would someone request a mistrial?
1. there is one error that is so enormous that there is no way a fair trial could result.
2. the culmination of the small errors caused the trial to result in an unfair trial.
Would argue both and number 2 in the alternative.
Does jeopardy attach when there is a hung jury?
No, jeopardy has not attached bc ordering a mistrial based on a hung jury shows a manifest necessity.
What is an allen charge?
The judge cannot ask the jury what the "score" is, but he can give them an additional instruction that, while they do not have to change their minds', they should listen to everyone else (kind of like an incentive to come back with a unanimous verdict so they can leave)
If the jury comes back after an Allen Charge and are still hung, this is evidence of manifest necessity
What happens if D is successful on appeal based on error in the trial proceedings?
What happens if D is successful on appeal based on insufficient evidence?
Because the case should never have gone to the jury in the first place; the case should have been dismissed.
What happens if d is successful on appeal if the verdict was against the great weight of the evidence?
This means the jury found the opposite way that the majority of the evidence would suggest.
Retrial - there is sufficient evidence, but the jury got it wrong.
What happens if the D is charged with two offenses, one greater and one lesser and is convicted of the lesser?
if he is successful on appeal and his conviction is overturned, he cannot be recharged with the greater offense.
Can D be tried in state and federal court for the same offense?
Yes, double jeopardy does not protect him from being tried for the same offense in both federal and state court.
When d violates laws in 2 sovereigns he has committed two distinct offenses. It is not viewed as D being punished twice for the same offense.
Exception to the multi-jurisdiction rule.
If D is guilty of violating both a municipal regulation and state law, he cannot be tried twice on the same offense.
(county is an entity of the state)
If a new trial is permitted, may D be subject to harsher punishment?
Yes, under due process it would be ok if the sentence in trial 2 was based on information that trial 1 did not have and if the judge records the reasons in writing for the increased sentence.
When can the government appeal without double jeopardy attaching?
If the termination of the trial takes place before jeopardy has attached, it does not matter what you call the termination (mistrial, dismissal, or acquittal), the case can be retried.
When can the government appeal when jeopardy has attached?
Never, even if it was rendered incorrectly.
They can only appeal a dismissal if it was granted based on trial error (not on the merits).
They can appeal a mistrial if there is a showing of manifest necessity for the mistrial. (except where the D requests it)
What about when there is a hung jury and D makes a timely motion for acquittal which is granted?
This cannot be appealed because it is considered an acquittal.
What if the government makes a motion that is not timely after a hung jury and the judge grants jnov for the defense?
Counsel missed the deadline to make the motion to preserve the issue on appeal; thus, jeopardy attaches and the issue cannot be appealed.
Does double jeopardy attach after the court grant jnov for the government, which ends in a conviction of the defendant?
Defense can appeal - they can just reinstate the jury verdict.
What constitutes the same offense under the blockburger test?
1. If each has an element that the other does not, then they are NOT the same offense.
2. If only one of them requires proof (in addition) that the other does not, then they are the same offense.
ex. joyriding vs. autotheft
3. If two crime were committed at separate time, then they are not the same offense.
what happens if the court determines that the prosecutor has charged D with the same offense in the same case?
1. the prosecutor may elect which charge to take before the grand jury, or
2. the judge can instruct the jury that they may find D guilt of one or the other of the offenses, neither, but not both.
What happens if the court determines that the prosecutor has charged the D with the same offense in successive cases?
In successive prosecution, following an acquittal or a conviction for one offense prior to the second trial for the same offense, the D will seek a dismissal of that charge because it is the same offense for which he has already been tried.
What are the exceptions to double jeopardy?
late discovery of facts
Double jeopardy claims are also nullified if the legislature intended that there be cumulative punishment under 2 statutes
when all the events needed for the greater degree of the crime have not occurred when the prosecution for the lesser-included crime began (this is a common law rule)
Think of Δ assaulting someone so badly that they end up in the hospital, the prosecution bringing charges of assault, the victim dying while in the hospital, and the then bringing prosecution charges for murder
if Δ received a conviction for the lesser of the two charges, and it was reversed on appeal, the prosecutor may then charge Δ with the greater offense, if he so elects—unless he brought both degrees to begin with (see page 20)
Think of Δ beating someone to death and the prosecution bringing charges for aggravated assault; Δ then appeals his conviction based on trial error and is successful; the prosecution is not then barred from bringing forth murder charges against Δ
if Δ commits a lesser offense against a victim on one day, and the greater offense on a completely separate day, he may be charged with both of the offenses—doesn't matter if the victim is the same in both charges
Think of Δ assaulting someone one day, and showing up at their house the next and killing them; in this case, the prosecution may bring charges for assault and murder
it doesn't matter if the offenses were exactly the same or if they occurred at the exact same time if the victim for each charge is different
Think of Δ shooting a gun and the bullet passing through one victim to another; the prosecution is not barred from bringing 2 charges of murder
if the laws of two separate sovereigns have been offended, both may bring the same charges against Δ; doesn't matter if the offense, time, and victim are all the exact same—only barrier is that both courts must assert proper jurisdiction (see page 21)
Think of Δ standing on the Indiana side of the river and shooting and killing someone in Kentucky; prosecutors in both Indiana and Kentucky may bring forth murder charges
Late discovery of facts
when facts that support a greater offense are discovered after the prosecution for the lesser offense has begun (despite due diligence), the prosecution may bring forth the greater offense
Think of situations that involve perjury
when the defendant asks for separate trials for the greater and lesser offense or does not raise the double jeopardy defense the prosecution is permitted to put on both cases
This of Δ shooting and killing someone and the prosecution bringing charges for assault and murder; if Δ requests separate trials for the murder and assault charges the prosecution may bring both
What is the felony murder rule?
The prosecution may not get a conviction for felony murder AND the predicate felony that resulted in the homicide
But, if Δ committed multiple felonies and only 1 murder
the prosecutor may charge him with all but 1 felony (the one that will be used to build the felony murder case) and the felony murder charge
What is collateral estoppel?
Enacted when Δ is charged of multiple crimes in which double jeopardy is not offended, and each count is separated into a separate trial
Collateral estoppel holds that when Δ is acquitted at the first trial for reasons that would necessarily imply that Δ also could not have committed the second count, he need not go through the ringer again for the other charge
When does collateral estoppel apply?
In special verdict situations—you have to know why Δ was acquitted in order to know whether or not the second charge is possible, based on these facts
In general verdict situations you will have to look at the court transcripts from the first trial to determine why acquittal was the result
What are two examples of special verdicts?
Capital cases where at least one aggravating circumstance is needed in order to sentence Δ to death
If the prosecution only sets out trying to prove one aggravating circumstance and the jury does not sentence Δ to death, you can assume that they did not find that this aggravating circumstance existed
What are the eight plea options?
Plea of not guilty
Plea of nolo contendere
Plea of guilty
Guilty but Mentally Ill
Not Guilty by Reason of Insanity
What is a plea of not guilty?
this requires the government to prove its case in full
a. It also reserves the right to a trial by jury, the privilege against self-incrimination, and the right to confront your accusers
b. This is a legal assertion of rights, not a statement of facts (if you plead not guilty, but the jury later determines that you are, you are not then also guilty of perjury)
c. If Δ elects not to enter a plea, it is presumed that he has entered a plea of not guilty
What is a plea of nolo contendere?
a formal declaration that Δ will not contest the charges; this has the same legal effect as a guilty plea in terms of its finality (i.e., it constitutes a conviction)
a. This plea is governed by Rule 11 (impacts over 90% of all criminal proceedings)
b. This plea waives the right to a jury trial as well as other procedural rights
c. One upside to this plea is that if Δ pleads nolo contendere (as opposed to pleading guilty) that plea may not then be used as evidence against him in a subsequent civil case (some jurisdictions expand this provision to also include criminal cases)
d. This plea, however, is not an absolute right—Δ must first get the court's consent before he may enter a plea of nolo contendere (the court must weigh the parties' as well as the public's interests)
i. The court has to determine that there is a factual basis for the plea
ii. This request gets denied in the majority of cases because the courts feel justice would be better served by allowing private parties, as well as the government, to seek redress for criminal activity
iii. Some jurisdictions do not allow this plea, period—Kentucky is one of them
an admission of guilt and, essentially, a criminal conviction
a. This plea waives the right to a jury trial, right to counsel, right to confront and cross-examine witnesses, and the right against self-incrimination
b. The court must find evidence that Δ fully understood the charges against him and acted voluntarily in tendering this plea
c. This plea can be entered at any time during the proceedings
allows Δ to plead guilty while reserving an issue for appeal
a. If the appeal is successful, Δ may withdraw the plea of guilt (Δ then decides if he wants to go to trial to retry the issue, enter a subsequent plea bargain, or [if he's lucky] the prosecutor may dismiss)
b. Δ must obtain the court's consent and file a written document reserving his right to appeal (has to describe the precise issue to be appealed)
i. Some states call this a "plea-with-reservation"
5. Guilty But Mentally Ill
a person can be mentally ill without being insane (this is claiming temporary insanity)
a. This plea results in a conviction (Δ is, after all, admitting that the crime occurred and that he was the perpetrator)
b. The standard of proof goes like this:
i. Beyond a reasonable doubt, Δ committed the crime accused
ii. BUT, Δ only has to prove by a preponderance of evidence that at the time the crime took place, he was mentally ill (mentally ill is a lesser standard than insane)
c. Δ does not necessarily have to assert this claim—the jury may find it on their own accord
d. The main drawback to this plea is that, if it is successful, Δ must be sent to a mental institution for a sentence period until he is either "well" or the sentence time elapses (whichever occurs first) AND he also has a criminal conviction on his record
1. However, if Δ is not deemed "well" by the time his sentence has run, someone may make a motion for involuntary hospitalization
6. Not Guilty By Reason of Insanity
Δ is not held accountable for the crime, period
a. Δ must prove mental retardation by a preponderance of the evidence
i. The difference between this and the above plea is that GBMI requires proof that mental illness was not the sole reason Δ committed the crime while NGBRI requires proof that Δ lacked the mental capability to appreciate his actions—sometimes, the jury is confronted with both options and has to choose one (or they may choose "guilty")
b. Insanity is harder to prove than mental illness
c. If this plea is successful, Δ is evaluated to see if he is in need of involuntary hospitalization
i. If not, he walks—no criminal record
7. Alford Plea
Defendant is adamant that he did not commit the crime alleged, but he realizes the prosecutor's case against him is so strong that it is unlikely that he will prevail
a. In this case, Δ agrees to accept punishment for the crime, while at the same time contending his innocence—the reasoning is that there does not have to be actual admission of guilt, only assent to punishment
b. This is different from a nolo contendere plea because here, Δ denies the allegations
c. If this plea is entered, it is the same as a conviction
i. The prosecutor is still required to make their case
ii. This plea may not be used in a collateral proceeding (i.e., it can't be used as evidence in a civil trial after the criminal trial)
d. People that support this type of plea (and not all do) state that Δ is able to review the prosecutor's case and make an educated decision as to what is in his best interests
e. Generally found in situations where Δ is charged with minor offenses—so he can get probation instead of jail time
What must be present in order to reserve a right to appellate review of a plea agreement?
A verbatim recording of the plea proceedings
The court has to first determine whether Δ's relinquishment of his rights was done voluntarily and knowingly
The burden of invaliding the plea is on the party seeking to void it
The details of the plea must be stated in court so the judge may decide whether to accept or reject (this may be done in-camera)
Statements made during plea negotiations are inadmissible in court (but only if Δ pleads guilty)
o This is circumvented if, at the outset of negotiations, Δ agrees to waive his right against self-incrimination
When may the defendant plead?
At arraignment—this is also where Δ will be provided a copy of the formal charges and schedule trial
The indictment must also be read aloud in open court
When may defendant withdraw a guilty of nolo contendere plea?
Before the court accepts or rejects it the defendant can withdraw for any reason.
After the court accepts it, but before it imposes a sentence if:
1. the court has rejected the plea or
2. D can show a fair and just reason.
....considers factors about the D
....considers the prejudice towards the prosecution.
After the judge accepts the plea and imposes the sentence:
1. but defendant must succeed on direct appeal or collateral attack (usually have to argue manifest injustice or miscarriage of justice)
May the government withdraw a plea?
yes, at any time before it is accepted so long as there is no detrimental reliance
What are the requisites for a judge to accept a plea in conviction?
At least some factual basis for the charges
The judge must inform Δ of his rights
The judge must make sure Δ understands everything that he is accenting to what he is waving as a result
Boykin says Δ has to be addressed personally in open court—the record may not be silent as to whether or not Δ was informed of his rights
However, Parke says that it is sufficient for the judge to ask defense counsel if Δ has been informed of all his rights
What type of information must a judge inform D of before accepting his convicting plea?
The nature and possible penalties of the charges (Δ must know all the "critical elements" requisite of the offense, the nature of the charges, any forfeiture, the court's authority to order restitution, the court's obligation to impose special assessment, the court's obligation to calculate a range of punishment, the terms of the plea agreement, and the mandatory minimum and maximum penalties if applicable), his right to counsel, his right to plead not guilty, his right to a jury trial, his right to confront and cross-examine witnesses, his right against self-incrimination, the consequences of pleading guilty, and the consequences of statements made under oath
Δ also has to be made aware of any conditions that may enhance sentencing
Possible penalties may include the possibility of deportation (where applicable)
After informing Δ of all of these things, the judge must ascertain that he understands them all
When is a plea determined involuntary?
When neither the defense counsel nor the trial court explained that a critical element of the crime (like intent). A guilty plea is involuntary if the D is unaware of the essential elements of the offense to which he is pleading.
When a defendant is represented by competent cousnel, the court usually may rely on that counsel's assurance that teh D has been property informed of the nature and elements of the charge to which he is pleading guilty.
The court just has to ensure the defendant's understanding about the "nature of each charge to which the D is pleading."
What does boykin v. alabama make the judge put on the record?
the record of the trial court must affirmatively show that the defedant both voluntarily waived those rights and understood the rights that he was waiving.
What is plea bargaining?
A form of negotiation in which the prosecution agrees to make certain concessions in exchange for Δ's guilty or nolo contendere plea
Benefits: cuts down on court time and expense and it eliminates the uncertainty of the outcome
Plea bargaining is not mutually exclusive, so if one case contains multiple charges, the parties may enter into multiple plea agreements
What is a rule 11 c 1 A plea agreement (charge agreement)
Where the prosecution will not bring, or will move to dismiss, other charges.
What is a rule 11 c 1 B plea agreement (recommendation agreement)
Where the government recommends, or agrees not to oppose the d's request that a particular sentence or sentencing range is appropriate or that a particular provision of teh sentencing guidelines, or policy statements, or sentencing factor does or does or does not apply
Does the 11 c 1 B plea agreement bind the court
What is a rule 11 c 1 C agreement
the prosecution agrees that a specific sentence or sentencing range is the appropriate disposition of the case
Does a rule 11 c 1 C agreement bind the court?
Yes, once the court accepts the plea agreement
What is the distinction between A/C agreements and B agreement?
The court must accept or reject an A/C agreement, or it can defer its decision until it has considered the pre-sentence report.
Is the prosecution supposed to live up to the promise in the B agreement?
yes, however the court is not bound in any way by the recommendation. So defendant cannot withdraw his plea since that it ass that D was entitled to under teh agreement.
are the three types of agreement mutually exclusive
no, can have multiple types in one plea deal.
Is the due process clause violated when a state prosecutor carries out a threat made during plea negotiations to re-indict the accused on more serious charges if he does not plead guilty to the offense for which he was originally charged?
No, so long as Δ is aware of the prosecutor's intentions from the beginning and so long as the prosecutor has a justifiable belief that he could have originally brought forth the more serious charges
As long as the prosecutor tells Δ what the consequences are of not taking the deal, ratcheting up the punishment is ok
But some may see this tactic as coercion: one option (Michigan is the only state that put this into statute) is to tell the prosecutor that whatever they are thinking of using as a bargaining tool is what they must originally charge (this means, whatever offenses you have lined up to bargain with, you better charge the highest level at the beginning, then work your way down)
Can D waive his right to bring a claim of ineffective assistance of counsel in entering a plea agreement as a term of the that plea agreement?
What happens when the prosecutor breaks a plea agreement?
The ABA states that the prosecutor may not break the terms of a plea agreement until Δ is found to not to be in compliance
If it is found the government has breached a plea agreement the court has three options:
No remedy necessary
o This is available in 2 situations: de minimis harm and subsequent remedy by the government
o Has to be remanded to the trial court with a new judge
Allowing Δ to withdraw his plea
o This returns both parties to their original positions
who has to comply will all the terms of the plea agreements
the prosecutor, any successor of the prosecutor who made a promise about sentencing to the D
What steps show whether or not the government upheld a plea agreement?
Was there an agreement between the parties?
...requires offer and acceptance by both parties
Was the agreement broken?
....would need to look at whether the D received what he bargained for.
What happens if D violates the agreement?
He has effectively waived his double jeopardy protection and may be tried again.
Who decides whether the agreement is broken?
basically the prosecution.
In the plea agreement you should explicitly state that questions about the construction of the terms of the plea agreement must be decided by the court not the parties.
What is a third party beneficiary agreement?
A situation in which the prosecutor offers to let one of the Ds go free, if the other will plea guilty.
What is a package deal?
A situation in which a prosecutor tells a group of Ds that they may either all plead in a certain
What are the victim's role in plea agreements?
Most states are now allowing victims to become active in the plea negotiation process, if they so chose.
Victim Allocution: when a victim addresses the court at the time of plea or sentencing
Victim Impact Statement: when a victim addresses the court through a written testimony, taken in the presence of a court reporter
o Includes a "description of the nature and extent of harm suffered by the victim and the victim's recommendation for appropriate sentencing"
What is the mental standard needed to plea?
It is the same standard of competency needed to stand trial
The person must have the capacity to consult with defense counsel and have an understanding and appreciation of the nature and consequence of the proceedings at hand
If the court determines that Δ is under the influence of drugs or alcohol or has ever been hospitalized for mental issues, the trial will stop right there and an investigation will be conducted
statute of limitations
statutes that limit the amount of time after a set starting point that criminal charges may be brought against arising out of this transaction
What is tolling
times which are excluded from the calcualtion of statutes of limitations for various reasons such as the commission of the crime being hidden or D being out of state.
Can D waive a statute of limiations
yes, but it must be done knowingly, willfully, and intelligentl
What are some possible reasons for delay of trial?
The reasons could range from D's escape from custody to the judicial or prosecutor resources being busy with something else.
What are legitimate reasons for delay
For the prosecutor to be sure theyhave probable cause, for the prosecutor to be sue that they have enough evidence to get a conviction (b/y a reasonable doubt), for the prosecutor to be sure the strongest case possible, and for the prosecutor to be sure they have included all reasonable charges against the D in one proceeding.
What standard must a court following when determining whether the right to a speedy trial has been violated?
1. set a specific time limit when the trial must occur (set by legislature)
2. the demand rule: courts will only consider the question of whether the right has been violated if D demands a speedy trial.
3. when a violation of the speedy trial right is claimed, it is the burden of the prosecution to show just cause for such a delay
What is the demand-waiver doctrine?
it provides that D waived any consideration of his right to a speedy trial for any period prior to which he has not demanded a trial.
When following the cause for delay approach (the 3rd option), what factors do the court consider
1. length of delay
2. reason for the delay
3. 's assertion (or failure to assert) his right
4. Prejudice to D
Does D ever benefit from lack of a speedy trial?
Sure - while this right is what keeps the court system moving,D may benefit from witnesses becoming unavailable or memories fading.
What is the remedy for violation of speedy trial?
Dismissal of an indictment is not favored and is an extremely severe remedy but it is not uncommon for this violation sometimes it's the only possible remedy.
What is the federal speedy trial act of 1974?
It governs only federal cases.
1. The information or indictment must be filed within 30 days of arrest or service of summons.
2. The trial must take place within 70 days of filing the formal charges (indictment or information) or 70 days from the date on which D appears before a judicial officer, whichever is later.
3. Unless D gives written consent, the trial cannot occur less than 30 days after D appears before a judicial officer or expresses his desire to proceed pro se.
On an appeal for speedy trial rights, what activates the rights under due process, the 6th amendment, and the Speedy Trial Federal Statute?
1. Due process - crime
2. 6th amendment - Earlier of the arrest or the indictment
3. Speedy trial: Arrest to charge in 30 days; Charge to trial 70 days.
On an appeal for speedy trial rights, is the time activating or dispositive under due process, the 6th amendment, and the Speedy Trial Federal Statute?
1. Due Process: Activator - 17-18 months
2. 6th amendment: Activator - More than 12 months between activation and trial
3. Speedy trial act : dispositive
On an appeal for speedy trial rights, what is an illegitimate reason for delay under due process, the 6th amendment, and the Speedy Trial Federal Statute?
1. Due Process: Gain a tactical advantage
2. 6th amendment: Nothing attributable to D
3. speedy trial act: 17 categories (see statute)
On an appeal for speedy trial rights, Is a demand necessary to argue due process, the 6th amendment, and the Speedy Trial Federal Statute?
1. Due Process: Not mentioned
2. 6th amendment: Demand is necessary
3. Speedy trial act: exclusively self-executing
On an appeal for speedy trial rights, does the D have to show prejudice under due process, the 6th amendment, and the Speedy Trial Federal Statute?
1. Due Process: Yes, d must show
2. 6th amendment: Yes, the burden shifts between D and the government depending on how many times D demanded a trial.
3. Speedy trial act: No
On an appeal for speedy trial rights what are the sanctions for violations of speedy trial rights, under due process, the 6th amendment, and the Speedy Trial Federal Statute?
1. Due Process: Dismissal with prejudice
2. 6th amendment: Dismissal with prejudice
3. Speedy trial act: With or without prejudice
Which is harder to prove, pre-charge delay (due process) or post-charge delay (6th amendment)?
Pre-charge delay because you have to show both an illegitimate reason for delay and prejudice; must satisfy both
Post-charge delay is more of a balancing test:
You have to prove an illegitimate reason for delay, demand, and prejudice but the court will look at the 3 together and give an take from each.
May D waive his right to a speedy trial?
No, waivers have to be made knowingly, and there is no real way to know what an inappropriate length of delay is.
Who bears the burden of proof in speedy trial claims?
If the reason that is offered for delay indicates the the government exercise diligence, the burden is on the D to show prejudice.
If the nature of the claim is bad faith, the burden is on the government to show that the delay did not prejudice D.
--if bad faith -- automatic dismissal with prejudice. 'If the nature of the claim is based on government negligence:
Short delay: the burden is on D.
Long Delay: the burden is on the government.
What are the three conflicting theories on the public trial right?
Constitutional Right to a Public Trial
Right to be Present
What is prejudicial publicity?
There is a strong presumption that trial proceedings should be made public, but this presumption may be rebutted through a determination of 2 factors.
1. Has the matter been historically been made open to the press and the general public?
2. Does the public access play a positive role in the function of this particular proceeding? (ie fair and impartial trial)
Exceptions: grand jury proceedings, hearings for immunity, hearings about whether a persons Fifth Amendment right has been violated, presentence reports, indictments util they are unsealed, and juvenile proceedings.
Where do you find the constitutional right to a public trial and what does the right entail?
a. This right is no exclusive to the D - the public enjoys the rights under the First and 14th amendments to attend criminal proceedings
i. this means D cannot simply waive this right.
b. We want to ensure responsibility and transparency and discourage perjury.
What are the 4 elements to overcome the presumption of openness?
i. An overriding interest that is likely prejudiced by a public trial
ii. The closure must be no broader than necessary to protect that interest
iii. The trial court must consider reasonable alternatives to closing the proceedings
....... After the judge has considered all viable alternatives he must write up an analysis of them and say why each would or would not work
iv. The court must make findings adequate to support the closure
What is the right to be present?
Rule 43 gives the D the right to appear at his own trial. This is a broad right.
a. This applies to the initial appearance, time of plea, and every stage of the trial including the impaneling of the jury, the return of the verdict, and imposition of sentence
b. The rule is that the proceedings should not start the trial without Δ because this would violate the right
i. However, if Δ leaves after the commencement of the trial, the court has not violated the right if they elect to continue
c. But sometimes, the absence of Δ is justified because there is nothing that could be done to enable him to better defend himself in open court
i. Sometimes Δ can physically be present, but not be all there mentally—so why would it matter?
d. Δ may waive this right if they are a corporation or committed a misdemeanor
What are some examples of situations in which closure is permissible?
1. Welfare or crime victims: consider the victim's age, psychological makeup, nature of the offense, etc.
2. Protection of a witness from threatened harm
3. Protection of an undercover agent's identity: not only their physical wellbeing but their employment as well
a. Usually in these situations courts will not order complete exclusion unless the officer's life is in danger, they will merely permit particular persons to attend trial only if they submit to an obscured view
4. National security
5. Court security concerns
6. Practical reasons related to space (i.e., lack of available seating)
7. Practical reasons related to orderly proceedings
a. Usually in the form of limited closures for uninterrupted openings and closings
8. Exclusion because of particular attributes of person excluded
What happens if the right to a public trial is violated?
D does not have to show actual prejudice to obtain relief.
What are some examples of situation in which D does not have to be present?
D does not have to be present for any legal aspects of the case; this may include:
In-chamber conferences, bench conferences outside the jury hearing, conferences and rulings on jury instructions.
What happens if the right to be present is violated?
This uses the same "harmless error test" as does violation of Rule 11 (pleadings)
This depends upon the type of proceeding in question and the length of Δ's absence
The main thing this right gets at is Δ's right to confront his accusers (i.e., cross examination)
If D becomes disruptive at trial how many a court remedy the situation?
1. Binding and gagging Δ
a. But this is a LAST DITCH EFFORT
b. Really only allowed for extremely special circumstances
2. Issue a contempt citation if the person will not cooperate
a. This is rarely effective though—if Δ is misbehaving, he is probably well aware of the fact that he is breaking the rules and does not care
3. Physical removal of Δ from the courthouse
a. This is the most preferred method
4. If Δ is presumed dangerous, the judge may determine that closed circuit TV is necessary
a. But, you do not want this method to mess with the presumption of innocence
How is venue determined for criminal case?
Venue lies in the district or county where the crime occured.
What can either side file if they are concerned about jury prejudice?
Motion to change venue
When will the judge make the decision on a transfer of venue motion?
After voir dire
If it is the D who files the motion to transfer, who also has to agree to the transfer
the U.S. attorneys in the future and present venue
What is voir dire
A form of questioning used to determine if any juror is biased and/or cannot deal with the issues fairly, or if there is other cause not to allow a juror to serve
The purpose of voir dire is to determine who was actually exposed to the publicity and what effect it had on them—do these jurors have fixed opinions about Δ?
Have to consider: knowledge of the facts, acquaintanceship with the parties, witnesses or attorneys, occupation which might lead to bias, prejudice against the death penalty, or previous experiences such as having been sued in a similar case
Where can a case be transferred to?
The first preference is to an adjacent count. But if not appropriate to a county that is "convenient"
What are three ways in transfer of venue may occur?
The judge may transfer the entire case to a completely separate jurisdiction
The judge may transfer the case and move with it if he has invested quite a bit of time in it (but this is unusual—judges want to get rid of cases)
The judge may import a new jury from a different county
What are the three grounds for granting transfer of a trial?
1. prejudice: D will not be able to get a fair trial in the original venue.
2. convenience to the parties and witnesses
3. interest of justice
How does the D prove prejudice?
a. Usually evidenced by hostile, pre-trial publicity—but it is presumed that voir dire will combat this
i. To prove prejudice, generally the moving party will attach opinion polls (usually from sociology or criminology classes at local colleges), news clippings, recordings, etc.
b. Sometimes a court will use a presumption of prejudice (as opposed to an actual prejudice requisite)
i. With the presumption theory, even if the voir dire process does not show signs of prejudice through inference, the publicity is so pervasive that the court will grant a transfer
ii. Things to look at under this theory:
1. What's the size of the community?—small communities are more susceptible to negative press
2. What's the nature of the publicity?
3. What's the time lapse between the majority of the press coverage and the trial?
4. What were the jury findings on the charges overall?—if Δ is acquitted on some of the charges, but not others, there is a presumption that the jury was not biased towards guilt
c. But to combat prejudice, the judge can also grant a continuance until the media coverage dies down or sequester the jury
i. Sequestering the jury won't do anything to solve the problem of pre-trial bias, though
What must the D establish to demonstrate a sixth Amendment fair cross section violation?
The excluded group is a distinctive group playing a major role in teh community.
The group is not fairly reasonably represented in the jury pool, and
The underrepresentation is the result of systematic exclusion of the group from the jury selection process.
How can the d prove an equal protection violation relating to jury selection?
The defendant must be from the same racial, ethnic or gender group (unlike the fair cross section) and the situation must involve intentional discrimination.
What is the purpose of voir dire?
to determine any possible basis for challenging jurors for cause and to develop background information to be considered in the intelligent exercise of peremptory challenges
And to learn about prejudices and attitudes in order to minimize their effect on the outcome of the case.
Who asks qusestion in voir diror
court initiates the exam and then permits counsel for the parties to conduct for further examiniation.
How can the counsel challenge a juror for cause
when the juror cannot render a fair and impartial verdict.
What is the bases for challenging for cause?
An inability to perform the necessary functions, and a bias that could compromise that juror's ability to decide the case impartially.
Bias may be actual or implicit.
for actual, you must show that the juror would be biased in the particular case
for implicit, you just have to show that the juror is so likely that the juror is to be biased.
What about a juror in capital cases? Can the juror be challenged because of the opporsition to the death penalty?
only if their opposition to the death penalty is so strong that it would prevent or substantially impair the performance of their duties as jurors.
When can you appeal a objectionable juror (on a for cause issue)
only when the defendant has used all available peremptory challenges
When can you challenge a peremptory challenge
When the opposing counsel believes tha the other attorney has exercised the challenges based on race or gender.
Under batson what is prima facie case?
The complaining party must show that these facts and other relevant circumstances raise an inference that the other party used that practice to exclude veniremen from the jury on account of their race or gender, which is an inference of purposeful discrimination.
The trial court considers all relevant circumstances such as a pattern of exercising strikes from the venir on the basis of race or gender and the nature of the prosecutor's questions and statements on voir dire to decision if there is a prima facie case.
What happens if the prima facie case is shown?
The burden shifts tot he alleged offending party to come forward with a neutral explanation for challenging jurors, which requires more than a denial of a discriminatory motive.
When is a neutral explanation pretextual
when the impaneled jury shares the same characteristics as those jurors who were struck.
When should you object on a batson issue?
after jury selected, before they are sworn
statutory limits where the parole board decides when the D is eligible for early release.
Determinate sentence (flat time)
for a fixed period without the possibility of early release
Can fines be imposed on a person when they are indigent
no, incarceration is a possibility for an intentional refusal to pay, but the court must explore alternative means of satisfaction of a fine.
When can the court impose forfeiture or confiscation of property as a punishment?
they can ask the D to forfeit property used in connection with the commission of the offense
What is the test for determining constitutionality (under the eighth amendment) of offense for non-capital crimes?
a. Proportionality is assessed by looking at the gravity of the crime in proportion to the severity of the punishment
i. Also look to sentences in our jurisdiction that are imposed on other criminals for different crimes (intra-jurisdictional)
ii. And to sentences in other jurisdictions for this crime (inter-jurisdictional)
1. But most modern cases do not consider these last 2 factors
strict proportionality is not necessary. Must be grossly disproportionate to the crime.
When does the Eighth amendment prohibit the death penalty
insane or mentally retarded
when the crime does not result in the death of the victim
When does the Eighth Amendment allow the death penalty
When the D acts intentionally or with wanton indifference
What must the prosecution do before the death penalty can be imposes
The prosecution must prove at least one aggravating circumstance beyond a reasonable doubt.
The jury's recommendation must include a written designation of the aggravating circumstance.
What happens if the jury does not find an aggravating circumstance
the judge can impose a sentence for life.
What are aggravating circumstances?
Where the D has been previously convicted of a capital offense, death while engaged in the commission of a serious felony, or a D who either pays or receives remuneration for a murder. When during rape, the D murdered the victim.
What about if there are multiple victims?
No a aggravator
Must the D be allowed to introduce proof of any mitigating circumstance?
Yes, when the statue allows
Ex. the D can introduce evidence about his peaceful adjustment to prison life.
What are some mitigators to the death penalty
a lack of criminal history
extreme mental or emotional disturbance
the victim participated in the act
The D believed he had a moral justification
D was only an accomplice
What do most state require when comparing aggravating circumstance against mitigating evidence
That the agravators outweigh the mitigators
Can the court look at previous charges or convictions in deciding a sentence for the D
Yes, he can consider the D's past life, health, habits, conduct and mental or moral propensities.
Where can habeas corpus petitions be filed?
in state and federal court
What is a harmless error
where the trial judge erred in admitting some minor item of evidence and the error did not affect the verdict (seemingly so from the facts and circumstances of the case)
When a judge fails to submit a sentencing fact to the jury is this a harmless error?
when the D fails to object to a trial error - requires a reasonable probability that the error affected the outcome of the trial. (but not just any possibility no matter how)
If the D fails to obtain a reversal on direct appeal what can he do
make a collateral attack on the conviction (ie. petition for habeas corpus)
What is habeas corpus?
is a civil suit brought to challenge the legality of the restraint under which a person is held.
D must prove that his confinement is illegal.
The respondent in the habeas action is the prisoner's custodian (warden or other official)
When can the petition of habeas corpus be denied
if the petition is frivolous, or if the court can determine the merits of the allegations by reference to records of previous state or federal judicial proceedings
how is this unlike civil rights actions?
the petition challenges the prisoner's custody based on alleged violation of the U.S. Constitution, federal laws or federal treaties.
So the D is challenging the fact or the duration of the confinement, not hte conditions.
how long does D have to file the habeas corpus writ
1 year from the latest date of the final judgment on direct review or the expiration of the time for seeking such review; the Supreme Courts recognition of the the new, retroactive constitutional right, removal of any state-imposed impediment that unconstitutionally prevented the filing of such a petition; or new facts that could have been discovered though due dilligence
exception to the one year rule
when there is compelling evidence of the petitioner's innocence (ie no reasonable juror aware of the new evidence would have voted to convict)
What is custody for purposes of habeas corpus
significant restraints on personal liberty as well as physical incarceration
BUT not when sentence has been served
or when there is just a final or civil disability not resulting in incarceration
or to challenge a conviction after the sentence has expired
What about when there is consecutive sentences
the person is in custody under any one of the sentences
A consecutive sentence that has not begun, is currently running, or already has expired may be challenged until all of the sentences have been served.
What about iIf the petitioner is subject to negative collateral consequences, will the court hear a petition from D who has been let out of prison
Yes, (ex. barred from jury duty, voting, certain jobs requiring licenses)
When must a claim be dismissed in a successive petition
when the petition returns to federal court with a second habeas corpus petition raising previously dismissed claims.
What about if a claim was not prented in a prior application?
it must be dismissed unless:
The claim relies on new con law, made retroactive by the Supreme Court to habeas corpus cases, or
The factual basis for the claim could not have been discovered by due diligence and the facts underlying the claim would show by a clear and convincing evidence that but for the con error, no reasonable jury would have found petitioner guilty.
Where does the habeas corpus first be presented
to the state court system through the entire appellate process of the state.
Through direct appeal or through the state version of habeas corpus
does the state court need to address the claim in a written opinion to satisfy exhaustion
Can the government waive exhaustion?
Yes, the lower court can waive so the federal court can review without violation comity
Are state issues cognizable in federal habeas proceedings
No - only federal issues are not state statute violations or state constitutional issues
Can a state prisoner rely on a fourth amendment claim in its habeas petition to federal court
no (bc it was heard under state law), but it can rely on a 6th amendment ineffective assistance of counsel based on deficient representation
can the court grant relief for a claim athat was adjudicated on the merits in state courts
no, unless the decision was contrary to or involved an unreasonable application of federal law clearly established by the Supreme Court.
What is a procedural default
when the d fails to comply with state contemporaneous objection rules.
What must the D show when he procedurally defaults
Cause for the procedural default and actual prejudice from a violation of federal law, or
that he federal court's failure to review the claims will result in a fundamental miscarriage of justice because the petitioner is actually innocent.
What is cause?
failure to object was due to constitutionally ineffective assistance of counsel at trial or on appeal, or government interference caused the problem.
Basically D must prove his lawyer was ineffective
What if the D proves inadequate assistance of counsel in state post-conviction proceedings?
It can excuse the procedural default of an ineffective assistance of trial counsel.
To show prejudice what does the D have to show?
that there is a reasonable probability that the result at trial would have been different
What must the D prove through actual innocence
that the petitioner is actual or factually innocent
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