Crim Pro

Ballew v Georgia

(1978), the Court decided it had gone far enough down the slippery slope. Justice Blackmun's opinion for the Court, relying on a set of empirical studies showing problems with smaller juries, found that Georgia's law allowing criminal juries of just five person violated the Sixth Amendment rights of defendants. While concurring in the result, Justice Powell, joined by two other justices, reiterated that he did not think the Fourteenth Amendment imposed exactly the same requirements for juries on states that the Sixth Amendment did on the federal government.The Supreme Court visited the issue of jury size and unanimity one final time in 1979.

Shelton

Clarifies when sentences fall into category of "sentenced to a term of imprisonment." A suspended sentence of imprisonment is the same as an "actual sentence" so cannot be imposed when the indigent is not afforded counsel. When it is imposed, the jail sentence will have been for an uncounseled conviction.

Lovasco

Facts: 18 month delay between allegations of when the act occurred and when the indictment was filed. An inspector's report one month after the acts seemed to contain all of the evidence the government needed to go forward. Rule: Prosecutor is not required to file charges as soon as they are able to do so. Investigative delay is OK and is fundamentally different than delay designed to gain a tactical advantage over the accused. Why? Maybe more than one person is involved in the crime. Charging too soon might frustrate the investigation. And it might encourage a rush to prosecute. And maybe the government needs time to decide whether this would be a good case to pursue, even if it did have probable cause.

ramos

*Note: The Supreme Court has granted cert in Ramos v. Louisiana, which considers whether the right to a unanimous jury is incorporated against the states under the 14th Amendment. The smart money is on incorporation. Issue: To what extent the 6th amendment follows the common law, or departs from it. in court now

Anne Bowen Poulin

, Prosecutorial Discretion and Selective Prosecution: Enforcing Protection After United States v. Armstrong, 34 Am.Crim. L.Rev. 1071, 1098 (1997) ("By requiring the defendant to produce specific evidence of an unprosecuted control group before granting discovery, the Court subjects the defendant to a 'Catch 22': the defendant needs discovery to obtain the information necessary to entitle the defendant to discovery.");

U.S. v. Osorio

, for example, the length of the database field for the prospective juror's city of residence in the master jury list was truncated, causing the system to misread the eighth character as the jurors' status. As a result, all of the records for individuals living in Hartford were mistakenly excluded from jury service because the system interpreted the "d" in Hartford to mean "deceased." At that time, the largest single concentration of Hispanics in the state resided in the city of Hartford. In another example, during a routine upgrade to the jury automation system in Kent County, Michigan, the software was mistakenly programmed to randomly select names from the first 125,000 records on the master jury list rather than from the entire list, which was more than 500,000 records in length.8 The list was sorted alphabetically by zip code and the largest proportion of African Americans in Kent County resided in the sequentially higher zip codes. Standing point: defendant need not be a member of that community to gain standing (man could object to lack of women in jury pool, e.g.). Actual jury point: the right is only that the jury be selected from a representative pool, not that the jury must itself contain a fair cross section. ("Defendants are not entitled to a jury of any particular composition: but the jury pools from which juries are drawn must not systematically exclude distinctive groups in the community"). Note: This is easier than winning an equal protection challenge, as you do not have to show purposeful discrimination. Compare with Batson, below.

US v Armstrong

- (defendant) and others were indicted in federal court on charges of conspiring to possess with intent to distribute crack cocaine and federal firearms offenses. In response to the indictment, Armstrong filed a motion for discovery or dismissal of the indictment on the ground that he was selected for federal prosecution because he was black. In support of his motion, Armstrong provided a "study" listing 24 defendants prosecuted for drug offenses in 1991 who were all black. - The requirements for a selective-prosecution claim draw on "ordinary equal protection standards." The claimant must show that the federal prosecutorial policy had a discriminatory effect and that it was motivated by a discriminatory purpose, which may be demonstrated by showing that similarly situated individuals of a different race were not prosecuted. If discovery is ordered, the government must assemble from its files evidence which might corroborate or refute the defendant's claim. Rule: If you are bringing a selective prosecution claim, you must show that the prosecution was purposefully discriminatory, not just that the effect was discriminatory. And to show that the effect was discriminatory, just to get discovery, you have to produce "some evidence" that similarly situated defendants of other races could have been prosecuted, but were not. Related discovery point (not in your text): this is not a matter of the prosecution's obligations under the rules regarding discovery. Those rules apply only to matters pertaining to the prosecution's case in chief, and do not apply to a claim of selective prosecution. So this turns out to be not an evidence question so much as a constitutional law question. High standards for showing equal protection means high standards for getting discovery. The catch-22: You can't get discovery unless you show selective prosecution, but you can't show selective prosecution until you get that discovery. - racist or selective prosecution is hard to prove

Argersinger

- A criminal defendant charged with any offense punishable by imprisonment is entitled to an attorney under the Sixth Amendment.' Gideon right only applies when a person will be jailed. "Importantly," says Dressler in his treatise, "this means that a judge who wishes to preserve the possibility of a jail term as part of a sentence must appoint counsel for an indigent defendant at the outset of the formal prosecution." Note the contrast with when the right to trial by jury applies. You only have a right to trial by jury when the authorized sentence over 6 months in jail (regardless of whether you actually go to jail or not) . So you can have a situation where you have a right to counsel, but no right to a jury trial. Even more weirdly, you can have a situation where the only possible punishment is a fine--because counsel has not been appointed--but where the authorized punishment is jail time or a fine, so that you get a jury trial.

Costello v US

- Frank Costello (defendant) was indicted for failure to pay income taxes. Costello filed motions to review the grand jury minutes and dismiss the indictment on the grounds that the grand jury could not have heard any valid evidence against him. The motion was denied. At trial, Costello's attorney asked witnesses whether they had testified at the grand jury. Costello again moved to dismiss the indictment on the grounds that the grand jury only heard hearsay evidence. The motion was denied, and Costello was found guilty. - A grand jury indictment will not be dismissed because it is based solely on hearsay evidence. The Fifth Amendment mandates that prosecutions must be initiated by a presentment or an indictment by a grand jury. The Fifth Amendment in no way limits the types of evidence that grand juries may hear. The grand jury was an English invention adopted by the Founders of our Constitution.

US v Williams

- Williams (defendant) was indicted by a federal grand jury for insurance fraud. Williams petitioned the district court to dismiss the indictment. He claimed that the government did not present substantial exculpatory evidence to the grand jury which negated an essential element of the charged offense. The district court agreed with Williams. - While courts maintain a supervisory power that allows them to regulate their own procedures, federal courts have only limited control over grand jury procedures and cannot dismiss a valid indictment where the government fails to include exculpatory evidence. Furthermore, it is the role of a grand jury to assess whether there is sufficient evidence to bring criminal charges. If the grand jury had to compel the prosecution to present exculpatory evidence, the grand jury would no longer be an accusatory body but rather an adjudicatory body. The grand jury is a separate institution from the courts and the courts do not preside over its functioning. - Question: does the state have an obligation to present "substantial exculpatory evidence" to the grand jury? Answer: no. Rule 1: The grand jury is a separate independent institution--it is not the court, and the court is not able to control it (for the most part). Rule 2: The prosecutor has no obligation to present exculpatory evidence to the grand jury. Nor does he have to present potential defenses to the grand jury. Theme in this opinion: don't turn the grand jury into a mini-trial. What constraints are there on the grand jury? Due process—fundamental fairness. If the prosecutor, for example, presents what he knows to be perjured testimony this may invalidate the grand jury as a matter of due process. Notice of alibi rule (state rule). Defense says, "I had to be a witness against myself"--because I had to give up information that would be useful in getting my conviction. Rule: Notice of alibi rules do not violate the defendant's right against self-incrimination. Court says: well, you're going to have to tell us this eventually. And if you did this at trial, the state could--of course--just ask for a continuance. (P.S. This might not be testimony that's protected by the 5th Amendment anyway!). Dissent: OK, fine -- tell us where you draw the line?! The dissent's absolutist line: Fifth Amendment means that criminal defendant can't give evidence, testimony, any evidence, to the State to aid it in convicting him of crime. Defendant has the right to say to the state, "PROVE IT."

Blackledge v. Perry

- no vindictive prosecution Holding: In a case where defendant exercised his right to a trial de novo after a misdemeanor conviction, it was vindictive--and a violation of due process--for the prosecutor to newly charge a felony.

burton

1 co-defendant has confessed, and the state wants to introduce the confession as evidence (can do even if co-defendant is not testifying, b/c statement of party opponent). But there's a risk that the confession from one defendant might lead to an assumption of guilt by the jury as to the other defendant. Solution A: just don't admit the confession. Solution B: edit the confession. Solution C: sever! Or maybe: give a limiting instruction! Rule: When testimony of one defendant implicates another defendant when they are tried jointly, a limiting instruction is not enough to remove the risk of predjudice to the non-confessing defendant. Rule doesn't apply when confessing defendant testifies, because then there's no confrontation problem.

Bullcoming

: Test of blood sample for alcohol is testimonial and the scientist who did the analysis must be available to testify, and not some other scientist. (No "surrogate" testimony.) do you need this guy - yes

US v. Salerno

An arrestee may be detained prior to trial if the government's regulatory interest in public safety is legitimate and compelling, provided there are procedural protections in place to safeguard the arrestee's liberty interests. A statute that permits an arrestee to be detained prior to trial is not inconsistent with the Due Process Clause of the Fifth Amendment or with the Excessive Bail Clause of the Eighth Amendment. With respect to due process, if the government has a legitimate and compelling interest in preventing crime, the state's regulatory interest outweighs individual liberty. = ok to preventively maintaim D - not punishments its regulation

blakely

Audio: "Just answer me this." Facts: Maximum penalty for kidnapping is 10 years. But range is 49-53 months, and judge can only go above the standard range based on substantial and compelling reasons for an "exceptional sentence." (This means finding aggravating factors.) Judge has hearing, decides to impose a 90 month sentence, 37 months more than the standard range. The facts that made for the longer sentence were neither admitted by D or found by a jury. Does this violate the 6th amendment? State says: this doesn't go beyond the maximum allowable penalty! Court: this misreads what we meant by a statutory maximum. Rule: The statutory maximum sentence is one that a judge can impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. When a judge imposes a punishment that the jury's verdict alone does not allow, the jury has not found all the facts which the law makes essential to the punishment, and the judge is going beyond his/her proper authority. Good summary: Recall that the rule from Apprendi was this: Any fact, other than the fact of a prior conviction, that increases the penalty for a crime beyond the statutory maximum must be submitted to a jury and proven beyond a reasonable doubt. Most who read the rule thought that the term statutory maximum simply referred to the maximum sentence established by the legislature in defining the crime. For example, a statute might say kidnapping is punishable by up to 10 years in prison. Sentencing guidelines are designed to take these maximum sentences into account, setting those maximums as the ceiling, and establishing appropriate sentencing ranges below that ceiling, taking into consideration the defendant's prior record, if any. Blakely was significant because the Supreme Court treated the presumptive sentence under the guidelines, rather than the maximum sentenced defined in statute by the Washington Legislature, as the statutory maximum sentence and therefore, as the punishment that could not be increased without a jury's input. Thus, under Blakely, the defendant's Sixth Amendment right to a jury trial can be violated any time the court imposes a sentence greater than that called for in the guidelines, even when the sentence imposed is below the maximum punishment permitted by the legislature. As the Supreme Court explained in Blakely, "the relevant 'statutory maximum' is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings." Dissent (O'Connor): this is going to destroy sentencing guidelines. We'll go back to unfettered discretion. Do we really want that? Isn't it good to know the presumptive range of your sentence? (See p. 397) Dissent (Breyer): 3 options All crimes get the same sentence? Uniformity, but high costs. And gives power to prosecutors to dictate sentences by charging decisions. Go to wholly indeterminate. Just set the max. Let judges depart downward, but have to prove facts to a jury to depart upward. Or option 4: set high sentences, then list of mitigating factors a judge could find.

haymond

Audio: "Remind me" Rule: A scheme where a judge, by making factual findings, can impose an additional prison term is unconstitutional, even when this is a violation of the terms of supervised release.

bryant

Audio: Well, wait a minute. Audio: crims would qualify Audio: do you distinguish Rule: Determining whether something is "testimonial" involves determining what the primary purpose of the interrogation is. This is a matter of looking at the objective circumstances. We ask: objectively speaking, was the purpose of the questioning to enable police assistance to meet an ongoing emergency or to gather evidence that is potentially relevant to a subsequent prosecution? On matters of objective fact: An objective analysis of the circumstances of an encounter and the statements and actions of the parties to it provides the most accurate assessment of the "primary purpose of the interrogation." The circumstances in which an encounter occurs—e.g., at or near the scene of the crime versus at a police station, during an ongoing emergency or afterwards—are clearly matters of objective fact. The statements and actions of the parties must also be objectively evaluated. That is, the relevant inquiry is not the subjective or actual purpose of the individuals involved in a particular encounter, but rather the purpose that reasonable participants would have had, as ascertained from the individuals' statements and actions and the circumstances in which the encounter occurred.[7] Holding in Bryant: Statements to police about a suspect's identity, type of vehicle, and state of mind that will assist them in resolving an "ongoing emergency" where the suspect is still at large are not testimonial. Michigan v. Bryant, 131 S.Ct. 1143 (2011)

booker

Audio: start of Kelly's oral argument. Possession of 9.25 grams of crack: min 10 years, max life. Base sentence is 210-262. Judge finds he had 566 grams of crack, and so instead of 21 years 10 months, he gets 30 years. Rule 1: The logic of Blakely applies also to the federal sentencing guidelines. Rule 2: The remedy is to make the sentencing guidelines advisory, rather than mandatory. What's left? What does it mean for the guidelines to be advisory?

stack v boyle

Bail is excessive and a violation of the Eighth Amendment when it is set at an amount greater than that necessary to ensure that the defendant will stand trial. In this case, the worst sentence the defendants could receive would be five years in jail and a $10,000 fine. The bail for offenses that carry a similar penalty is generally under $50,000. The government failed to show why such an excessive bail was necessary in this case to ensure that defendants appear for trial. - suggests appearance is the only thing that can be considered when setting conditions of pre-trial release

batson

Batson's three steps: Defense: show facts or circumstances that invite an inference of discrimination Then to prosecutor: give a race neutral reason for the strikes Judge determines whether reason was genuine or pretext for discrimination (here the persuasiveness of the state's justification is tested). In step 3), it is ultimately the defendant's burden to persuade the judge that the justification is pretextual. Standing point, again: defendant need not be a member of the discriminated-against group to raise the claim. Applies to both defense and prosecution: can't discriminate in strikes. Background: in Swain, the Court talked about a claim of discrimination being made when there was evidence that in case after case, the prosecutor was using strikes in a racially biased way. (This creates a really high burden of proof for a defendant in his or her particular case!) Batson makes it easier to show a prima facie case of discrimination. See 1251: steps to take to show inference of discrimination. Step one, how to prove it: • Use evidence in the voir dire, including, side by side comparisons of jurors struck and accepted, disparate questioning (in number or type), shared race of client and jurors, racially prejudicial treatment of jurors, Also: The Ninth Circuit has found a prima facie showing made in "multiple cases," Johnson v. Finn, 665 F.3d at 1070 (citing cases), where a prosecutor "strikes all or most veniremembers of the defendant's race," Shirley v. Yates, 807 F.3d at 1101. And not all minority jurors need be struck for a prima facie case to be found; "[t]hat one black juror was eventually seated does weigh against an inference of discrimination, but 'only nominally so.'" Shirley, 807 F.3d at 1102 (quoting Montiel v. City of L.A., 2 F.3d 335, 340 (9th Cir. 1993)). The Ninth Circuit has "found an inference of discrimination where the prosecutor strikes a large number of panel members from the same racial group, or where the prosecutor uses a disproportionate number of strikes against members of a single racial group." United States v. Collins, 551 F.3d at 921. On step two, it does not count as an OK explanation that a person will be sympathetic in a particular case because the defendant is of the same race as he/she is. Give a neutral reason in the context of this case--don't just say, "Trust me." On step three: credibility determination of prosecutor. Defense ultimately has burden of persuasion. Problem: hard to review judge's decision here, if it rests primarily on his or her sense of the prosecutor and/or the jurors struck. See p. 1261 for good analysis. Marshall, in dissent says: can't we just get rid of peremptory strikes? *Still a barrier to attacking strikes. *Neutral reasons are easy enough to generate. *What about unconscious bias--in the prosecutor or the judge? Rehnquist, in dissent says: just let everybody use them, for any reason. Applying this across the board means no equal protection violation. Should be able to use proxies to show juror partiality.

scott

Clarifies Argersinger: Right to counsel applies only to those cases that actually impose jail time. The Constitution requires "only that no indigent criminal defendant be sentenced to a term of imprisonment unless the State has afforded him the right to assistance of appointed counsel in his defense."

padilla

Confirms plea negotiations are a "critical stage" and found that misinforming client of immigration consequences was ineffective assistance. Remand for finding on prejudice. Rule: Failure to inform a defendant of the immigration consequences of a guilty plea means falling below the standard of a competent attorney. However, for ineffective assistance of counsel to be shown, the defendant must (as always) prove prejudice. Note: here we extend Hill beyond giving false information to the defendant to include not giving certain very salient information to the defendant. Padilla on remand: He might have taken the risk! He really didn't want to be deported, and the evidence against him was far from conclusive. IAC - Incompetent lawyer? Yes! Didn't give information about immigration consequences. Prejudice? Remand! See whether he would have risked trial to avoid deportation.

pennsylvania v smarr

D cahrged w first degree murder and robbery Witness testified while wearing a scarf Court erreed in permitting testimony about a prevous robbery and the deactiviation of a FB account without sufficiently linking these acts to Smarr Robbery was part of turf war Covering of face prevented jury from seeing her demeanor and expression Muslim Can still see her posture and the way and manner she speaks Err on the side of protecting religious rights Violation of face to face confrontation? Nope

taylor v il

D's 6th am right to compel witnesses not violated if court bars a defense witness from testifying because the D has not complied w valid court discovery order

Melendez-Diaz:

Drug examiner report that showed material seized by police was cocaine. TESTIMONY. Need to confront person who made the analysis. do you need somebody - yes

STRICKLAND

Facts here tend to make the attorney look very sympathetic. He really did do what he could do, and tried his best. Should we have wanted him to try to do more? Rule: there is a two-pronged test for ineffective assistance of counsel. First, did the performance of counsel fall before an objective standard of reasonableness? Second, was there prejudice? In other words, did the deficient performance mean that without it there would a reasonable probability that the result of the proceeding would have been different? Must establish both elements. Some general features of the opinion: Tend to defer to strategic or tactical decisions on the part of the attorney. The standard here is "highly deferential." If it can be called "sound trial strategy," it's probably OK. The goal of effective assistance of counsel is a fair trial. This can be given a procedural and a substantive meaning. The procedural meaning is perhaps captured in Step 1. You have a right to a good attorney, period. The substantive meaning is captured in Step 2. A fair trial is a trial with an outcome we can trust as reliable. A good attorney can get you there. But maybe the attorney wouldn't have made all that much difference, in which case, there is no violation. The standard of reasonableness can be defined by looking at what the legal profession says is reasonable. This is a good guide, but it's not decisive. And don't let the ABA manipulate the standard to get the results it wants. More on each step: Step 1: Below an objective standard of reasonableness. What's that? Hard to say. Courts must be deferential to the tactical decisions of lawyers. Don't view with 20-20 hindsight. There's a wide range of reasonable assistance. Can look at prevailing professional standards, but these are only guides--not requirements. Examples of failures of effective representation: Fail to file a timely motion to suppress evidence. Fail to fully investigate life history of defendant in death penalty case (when there was reason to believe this would turn up mitigating evidence). Good summary: In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." 466 U.S., at 690-691, 104 S.Ct. 2052. Hinton's attorney knew that he needed more funding to present an effective defense, yet he failed to make even the cursory investigation of the state statute providing for defense funding for indigent defendants that would have revealed to him that he could receive reimbursement not just for $1,000 but for "any expenses reasonably incurred." An attorney's ignorance of a point of law that is fundamental to his case combined with his failure to perform basic research on that point is a quintessential example of unreasonable performance under Strickland. See, e.g., Williams v. Taylor, 529 U.S. 362, 395, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (finding deficient performance where counsel "failed to conduct an investigation that would have uncovered extensive records [that could be used for death penalty mitigation purposes], not because of any strategic calculation but because they incorrectly thought that state law barred access to such records"); Kimmelman v. Morrison, 477 U.S. 365, 385, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986) (finding deficient performance where counsel failed to conduct pretrial discovery and that failure "was not based on 'strategy,' but on counsel's mistaken belie[f] that the State was obliged to take the initiative and turn over all of its inculpatory evidence to the defense"). Step 2: Prejudice Sometimes prejudice can be presumed—i.e., you don't have to show prejudice. Automatic reversal, as it violates the 6th Amendment right to counsel. In cases where the defendant is actually (think Gideon) or constructively denied counsel (see video). "Constructively" = it's as if you had no counsel at all. No time to prepare, no experience, etc.—must be extreme examples of this. Court is reluctant to find this. When the state unconstitutionally interferes with counsel's assistance In the case of certain conflicts of interest. The test for prejudice is the same as the materiality test in Brady: Was there--but for the deficient assistance of counsel--a reasonable probability that the the result of the proceeding would have been different? Not more likely than not, but undermine confidence in the result. Courts can consider prejudice prong before deficiency prong. No "rigid order of battle."' A defendant has suffered from the ineffective assistance of counsel when the attorney has not acted as a reasonably competent attorney, and there is a reasonable probability that absent these errors the result of the proceeding would have been different.

Marion

Facts: 3 years after end of criminal fraud scheme and indictment. Rule: There is no Speedy Trial Right under the constitution when defendants have not been formally charged, that is, when they are simply "suspects" and have not become "the accused." However, there may be other protections from the due process clause or from statutes and/or court rules. Upshot: take your time, government, in investigating a crime before you bring charges. Clock only runs when there's an arrest or an indictment. Rationale: there are no restraints on a person's liberty or even anxiety, stigma, etc., before we have formally charged you. Of course, you could be hurt in preparing your defense in the government takes too long to investigate. But that's not enough on its own to make the Speedy Trial right apply pre-accusation. Statute of limitations are the main restraints here: show balancing of governmental interests. Serious crimes will often have no statute of limitations. Want to deter, punish these crimes. In general though, limit time of prosecution so that evidence is fresh, put people at ease, and serve the interests of punishment, and limit arbitrary prosecution. MO. note: most felonies 3 years. Murder, class A felonies, rape, no SOL. Also, could be due process violation if governmental delay means that there can't be a fair trial, and that the government deliberately delayed in order to gain a tactical advantage.

FLORIDA V NIXON

Facts: McCoy insisted that he was innocent and was being framed in retaliation for revealing that local police were involved in a drug ring, but [his attorney Larry] English believed that the evidence against his client was "overwhelming." So English first encouraged McCoy to plead guilty in exchange for a life sentence; as McCoy's trial approached, English told McCoy that he planned to tell the jury that McCoy had committed all three murders, in the hope that doing so would convince the jury to sentence McCoy to life in prison, rather than death. McCoy was furious, but English went ahead with his plan, telling the jury that McCoy was "crazy" and "lives in a fantasy world." Aside: McCoy tried to fire English; English said he'd withdraw if McCoy got another attorney. But the court said, we're nearing trial, you're the attorney, English, and we're going ahead. Reasoning behind English's strategy: Capital trials have two phases. The first concerns guilt, the other punishment. Mr. English reasoned that he would forfeit his credibility with the jury if he contested what he believed was overwhelming evidence against his client in the trial's first phase. He feared the jurors would not listen to him when he begged them to spare Mr. McCoy's life in the second phase. Conceding guilt in a capital case is sometimes the right play. Last month, the Supreme Court agreed to decide whether it is permissible even if the man whose life is at stake objects. Is this denial of the right to counsel? Supreme Court says, yes, it is. This is not a matter of trial strategy, but a matter of the defendant's choice as to whether to assert his innocence. That means it is the defendant's choice to make, and the attorney has to assist him in that, not override or ignore his decision.

lafler

Facts: concession that the counsel was inadequate--told defendant that could not establish intent to kill from show below the waist. He got a sentence nearly three times the plea. So this goes to prejudice: if counsel had been adequate, would the result of the proceedings been different? This time the plea was rejected--based on the bad advice--and Lafler went to trial. What does prejudice mean in this context? THE HARM WAS GOING TO TRIAL?! Rule: In the context of a rejected plea offer, defendant has to show that there is a reasonable probability that plea offer would have been presented to the court, and the court would have accepted its terms and that the terms would have been less severe than under the judgment/sentence that were imposed. State says: the 6th amendment is about a fair trial, and Lafler got a trial. So what's the problem? Response: right to effective counsel attaches at other places besides trial, and Strickland talks about the results of the proceeding and the process, which could apply to pleas and trials. Remedy in this case: resentence, or get state to reoffer plea (!). Dissent (Scalia, again): He got a FULL AND FAIR TRIAL. What's the beef, exactly? The right to effective assistance should only go to the acceptance of a plea, not the whole process of negotiation (see oral argument objection to Queener). Here, no plea was accepted. The benchmark of Strickland is a fair trial, not a good proceeding (whatever the proceeding is). Altio (in dissent) on the obscurity of the remedy in these cases: The weakness in the Court's analysis is highlighted by its opaque discussion of the remedy that is appropriate when a plea offer is rejected due to defective legal representation. If a defendant's Sixth Amendment rights are violated when deficient legal advice about a favorable plea offer causes the opportunity for that bargain to be lost, the only logical remedy is to give the defendant the benefit of the favorable deal. But such a remedy would cause serious injustice in many instances, as I believe the Court tacitly recognizes. The Court therefore eschews the only logical remedy and relies on the lower courts to exercise sound discretion in determining what is to be done. IAC - Incompetent lawyer? Yes! Gave bad legal advice which led to rejecting plea offer. Prejudice? Yes! Again, way longer sentence than was contained in plea. Remedy? On remand, resentence or compel offer. (There is prejudice here, so the only issue is what the remedy should be.)

frye

Facts: didn't know about offer, so couldn't decide whether to accept it. D says, "If I knew about it, well, of course I would have taken it!" Different from Hill and Padilla - they gave bad advice. Here there was no advice. And certainly no advice prior to the plea. 4th time driving with a revoked license. August. November: prosecutor sends plea bargain offers. Offers expire Dec. 28. Key offer: plead to misdo, 90 days in jail. This is not an example of misinformation, but failure to convey a plea offer, to which defendant had not right for the state to offer, and no right for the judge to accept. Defendant ultimately pled guilty without any plea agreement. Gets 3 years. State says: there's no right to a plea, so there's no entitlement to a plea. Can't have a complaint about ineffective representation about an offer that you weren't entitled to. Court says, Well, we are a system of pleas. Can't just say that plea bargaining doesn't matter. It does, for most defendants. Pleas aren't just a backstop to trials--they for most people, are the beginning and end of the process. Rule 1: Defense counsel has a duty to timely communicate to clients formal offers from the prosecution to accept a plea on terms that are favorable to the accused. So there was ineffective assistance here. Rule 2: To show prejudice when an offer has lapsed or been rejected because of ineffective assistance of counsel (IAC), defendant must demonstrate a reasonable probability that they would have accepted the earlier offer, if they had effective assistance of counsel. So this is the same standard as Strickland, kind of. Compare with Hill: there is was, "I would have gone to trial! (as the standard); here is is, "I would have accepted the plea offer!" But that difference in Frye means showing a few more things: Rule 3: In order to show prejudice in the offer case, you must also show that the prosecution would not have withdrawn the offer, and the court would not have rejected it. Result: remand to state court to see if prosecution would have withdrawn plea, or whether state court would have rejected offer. Scalia in dissent: Doesn't the fact that he pled guilty make this all irrelevant? We're constitutionalizing the plea bargaining process here. But the right involved here is about the fairness of a conviction, and not the fairness of the bargaining. IAC - Incompetent lawyer? Yes! Didn't communicate plea offer in timely way. Prejudice? Yes! Worse sentence than what was in plea. Remedy? On remand, see if prosecution would still offer plea & judge would accept. (We still have to find prejudice here before we can go to a remedy.)

bartkus

Federal charge, acquitted. State charge, convicted. Double jeopardy? Rule: The states and the federal government are separate sovereigns. Acquittal or prosecution in one does not bar prosecution in the other. Compare with: city and state prosecution for same offense. This is barred by the double jeopardy clause. Compare with: dual state prosecutions. And this is not to be confused with whether, as a matter of policy, the federal government (for example) may decide not to charge someone already found guilty under a state criminal law. (E.g., the so-called "Petite Policy.")

garza

Files state habeas - 2004 2008, hearing in state habeas--application should be denied Court of appeals adopts court's finding, denies relief. Fed habeas in 2009 (first) Stayed -- go back and exhaust new claims/evidence State court says: abuse of the writ (successive petition--these weren't genuinely new claims, you could have presented them earlier, etc.) Applicant presents nine allegations. We have reviewed the application and find that applicant's allegations fail to satisfy the requirements of Article 11.071 § 5. Accordingly, we dismiss the application as an abuse of the writ without considering the merits of the claims. So go back to fed court: they reject habeas, and reject COA, and now Garza asks appeals court: give me a COA. COA as jurisdictional prereq Backdrop of AEDPA -- highly deferential standard. Claim 1 IAC: To substance of claim, in light of great deference. So not just Strickland, but also that application of Strickland was unreasonable SO DOUBLY DEFERENTIAL Deficient for: not asking questions of jurors. State says: procedural default! If adequate basis, then it is defaulted. AND TEXAS GAVE AN INDEPENDENT AND ADEQUATE BASIS Look to exceptions: Garza says, my attorney was bad. But district court said there was no merit to this claim, so can't be ineffective for failing to raise meritless claim. So there was procedural default, and no exception to the rule on procedural default, because the claim was meritless, and so no ineffective counsel-exception to procedural default. (NOTE THE INDIRECT WAY WE GET TO THE SUBSTANCE.) Claim 2 Prior inconsistent statements and medical records--and this was a Strickland violation not to introduce. District court denied this too. Texas court: these would have been barred. Can't be ineffective for failing to introduce inadmissible evidence under the Texas rules! And we are bound by state's interpretations of its state law rules. Unclear what help medical records would have been. Claim 3 Didn't develop mitigating evidence Fetal alcohol syndrome -- raised for the first time, but state didn't request dismissal on procedural grounds. District court reviewed de novo. Most of the other mitigating evidence was exhausted. Should've called a different uncle! State habeas said: merely cumulative. Failure to get at this evidence wasn't ineffective. Should've called an expert! But decision not to call an expert was a reasonable tactical decision--experts might have hurt us. State court: strategic, and calling them wouldn't have effected the outcome. GOOD LANGUAGE HERE ABOUT DUTY TO INVESTIGATE. State court didn't mess up here under AEDPA. Note -- not challenging the investigation, here. Fetal alcohol syndrome -- reasonable not to investigate. So no Strickland problem.

ODonnell v. Harris Cty., Texas, 251 F. Supp. 3d 1052, 1167 (S.D. Tex. 2017), aff'd as modified, 882 F.3d 528 (5th Cir. 2018), and aff'd as modified sub nom. ODonnell v. Harris Cty., 892 F.3d 147 (5th Cir. 2018)

Finally, I take it that an implication of Salerno is that if preventive detention is OK on no bail, using money bail as a means to preventively detain someone is OK so long as it is reasonably related to protecting public safety (the same would hold for appearance as well--if your worry about appearance is strong enough, you can order no bail; so too could you impose money bail for the sake of appearance). A recent court decision in the 5th circuit said as much, and I think it's right: [T]he issue in this case is not the right to "affordable bail." As cases and commentaries make clear, courts may impose secured money bail beyond a defendant's ability to pay: (1) in cases of dangerous felony; (2) after finding that no alternative to secured money bail can reasonably assure the defendant's appearance or public safety; (3) with the due process of a detention order if the secured money bail in fact operates to detain the defendant. But note the key thing here: the reason for the high bail has to be because of perceived dangerousness. If the reason you can't bail out is not because you are dangerous but because you can't afford it, then this is an equal protection problem (which, indeed, was the issue in the Harris City case). As the Harris City case also makes clear, if money bail operates as a de facto detention order, then you really ought to have the procedural protections that would apply if you were just being detained on "no bail." The problem, of course, is making sense of the fact that you have a right to bail, but not to affordable bail, and it would seem that setting bail at an amount you can't afford is the same thing as preventive detention. However, there is still a distinction because, maybe the amount that would serve as an incentive to keep the community safe or to make sure you appear in court is an amount that is more than you can afford.

kyles

Four aspects of materiality: Test for materiality is "reasonable probability" not preponderance of the evidence. Is the non- disclosed evidence of a type that would undermine our confidence in the verdict? It's not sufficiency of the evidence, either. "A defendant need not demonstrate that after discounting the inculpatory evidence in light of the undisclosed evidence, there would not have been enough left to convict." If there's error, don't go onto assess if the error was harmless. Look at the evidence that was suppressed as a whole, not item-by-item.

gamble

Government says: it's about the same offense, not the same act or transaction. And states and the federal government define different offenses.

ohio v clark

Holding: Statement to mandatory reporter was not testimonial, when statement was made by a child, and intent of questioner was to protect a vulnerable child who needed help. The Court in Clark reserved judgment on whether statements to non-police and non-prosecutors are "categorically outside" the scope of the confrontation clause. Not-testimonial: business records that are not prepared specifically for trial. Forensic reports: subject to ongoing controversy.

pollard

In Shelton, the Court applied the "actual imprisonment" standard of Argersinger and Scott, holding that a defendant sentenced to a term of imprisonment has a right to counsel even if the sentence is immediately suspended and coupled with probation. See Shelton, 535 U.S. at 658, 122 S.Ct. 1764 (noting that the Court was interpreting "the Sixth Amendment right to appointed counsel, as delineated in Argersinger and Scott "). The Court refused to distinguish between a prison sentence that the defendant begins to serve immediately and one that is suspended, coupled with probation, and triggered only upon a probation violation. "A suspended sentence is a prison term imposed for the offense of conviction," the Court explained. Id. at 662, 122 S.Ct. 1764. "Once the prison term is triggered, the defendant is incarcerated not for the probation violation, but for the underlying offense." Id. - According to the bright-line, "actual imprisonment" rule of Argersinger and Scott, Pollard's right to counsel was not violated here because he received a stand-alone sentence of probation, rather than a suspended prison term coupled with probation. See Scott, 440 U.S. at 373-74, 99 S.Ct. 1158 (holding that the Sixth Amendment "require[s] only that no [uncounseled] indigent criminal defendant be sentenced to a term of imprisonment"). Shelton does not compel a different result. - compare with right to jury trial According to the Supreme Court, the jury-trial right applies only when "serious" offenses are at hand—petty offenses don't invoke it. For purposes of this right, a serious offense is one that carries a potential sentence of more than six months' imprisonment. (Baldwin v. New York, 399 U.S. 66 (1970).) If the penalty is six months or less, the crime is serious only if the sum of its penalties are weighty enough. On appeal A convicted defendant has no constitutional right to appeal. However, every state allows each convicted person at least one appeal as of right, and the rule is: if the state gives you a right to appeal, you have a right to counsel on your first appeal as of right.

State v. Selle

In addition, movant's claim is an attack on the sufficiency of the evidence before the grand jury to support the indictment. While a grand jury must hear some evidence before returning an indictment, it is the judge of the sufficiency and competency of that evidence.

Bordenkircher v. Hayes):

In our system, so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion.

lee

In the unusual circumstances of this case, we conclude that Lee has adequately demonstrated a reasonable probability that he would have rejected the plea had he known that it would lead to mandatory deportation. There is no question that "deportation was the determinative issue in Lee's decision whether to accept the plea deal." Report and Recommendation, at 6-7; see also Order, at 14 (noting Government did not dispute testimony to this effect). Lee asked his attorney repeatedly whether there was any risk of deportation from the proceedings, and both Lee and his attorney testified at the evidentiary hearing below that Lee would have gone to trial if he had known about the deportation consequences. See Report and Recommendation, at 12 (noting "the undisputed fact that had Lee at all been aware that deportation was possible as a result of his guilty plea, he would . . . not have pled guilty"), adopted in relevant part in Order, at 15. Lee demonstrated as much at his plea colloquy: When the judge warned him that a conviction "could result in your being deported," and asked "[d]oes that at all affect your decision about whether you want to plead guilty or not," Lee answered "Yes, Your Honor." App. 103. When the judge inquired "[h]ow does it affect your decision," Lee responded "I don't understand," and turned to his attorney for advice. Ibid. Only when Lee's counsel assured him that the judge's statement was a "standard warning" was Lee willing to proceed to plead guilty. Id., at 210. There is no reason to doubt the paramount importance Lee placed on avoiding deportation. IAC - Incompetent lawyer? Yes! Misinformed about deportation probability if pled guilty. Prejudice? Remand! Even though odds are long, D really wanted to avoid deportation.

Doggett

Issue here comes down to prejudice. Doggett can only really claim he was harmed in pursuing in his defense--because he was pretty much unaware that he was under indictment. Rule: Defendants may not have to show particular ways in which delay has harmed them--witnesses can't testify, can't get evidence, can't raise defenses--to win on prejudice. Sometimes, the government's failure to expeditiously prosecute a case will be enough to presume prejudice. To be sure, to warrant granting relief, negligence unaccompanied by particularized trial prejudice must have lasted longer than negligence demonstrably causing such prejudice.

Boyer

Jonathan Boyer waited in jail for more than seven years from the date of his arrest until the day his case went to trial. The Louisiana Court of Appeal rejected Boyer's claim that this delay violated his right to a speedy trial. In doing so, the court found that most of the delay in Boyer's case was caused by the State's failure to pay for his defense due to a "`funding crisis' experienced by the State of Louisiana." 2010-693, p. 32 (La.App. 3 Cir. 2/2/11), 56 So.3d 1119, 1142. Nevertheless, the court did not weigh that part of the delay against the State in assessing the merits of Boyer's claim, reasoning that it was "`out of the State's control.'" Id., at 1145. Four Justices wanted to take the case, and reverse: A State's failure to provide adequate funding for an indigent's defense that prevents a case from going to trial is no different. Where a State has failed to provide funding for the defense and that lack of funding causes a delay, the defendant cannot reasonably be faulted. See Barker, 407 U.S., at 531, 92 S.Ct. 2182. Placing the consequences of such a delay squarely on the State's shoulders is proper for the simple reason that an indigent defendant has no control over whether a State has set aside funds to pay his lawyer or fund any necessary investigation. The failure to fund an indigent's defense is not as serious as a deliberate effort by a State to cause delay. Ibid. But States routinely make tradeoffs in the allocation of limited resources, and it is reasonable that a State bear the consequences of these choices.

Fischer

MO. case. Application of Doggett type-reasoning.

missouri rule 33.01

Misdemeanors or Felonies - Right to Release - Conditions (a) Any defendant charged with a bailable offense shall be entitled to be released from custody pending trial or other stage of the criminal proceedings. (b) The defendant's release shall be upon the conditions that: (1) The defendant will appear in the court in which the case is prosecuted or appealed, from time to time as required to answer the criminal charge; (2) The defendant will submit to the orders, judgment and sentence, and process of the court having jurisdiction over the defendant; (3) The defendant shall not commit any new offenses and shall not tamper with any victim or witness in the case, nor have any person do so on the defendant's behalf; and (4) The defendant will comply fully with any and all conditions imposed by the court in granting release. (c) The court shall release the defendant on the defendant's own recognizance subject only to the conditions under subsection (b) with no additional conditions of release unless the court determines such release will not secure the appearance of the defendant at trial, or at any other stage of the criminal proceedings, or the safety of the community or other person, including but not limited to the crime victims and witnesses. If the court so determines, it shall set and impose additional conditions of release pursuant to this subsection. The court shall set and impose the least restrictive condition or combination of conditions of release, and the court shall not set or impose any condition or combination of conditions of release greater than necessary to secure the appearance of the defendant at trial, or at any other stage of the criminal proceedings, or the safety of the community or other person, including but not limited to the crime victims and witnesses. When considering the least restrictive condition or combination of conditions of release to set and impose, the court shall first consider non-monetary conditions. Should the court determine non-monetary conditions alone will not secure the appearance of the defendant at trial, or at any other stage of the criminal proceedings, or the safety of the community or other person, including but not limited to the crime victims and witnesses, then the court may consider monetary conditions or a combination of non-monetary and monetary conditions to satisfy the foregoing. After considering the defendant's ability to pay, a monetary condition fixed at more than is necessary to secure the appearance of the defendant at trial, or at any other stage of the criminal proceedings, or the safety of the community or other person, including but not limited to the crime victims and witnesses, is impermissible. If the court determines additional conditions of release are required pursuant to this subsection, it shall set and impose one or more of the following conditions of release: (1) Place the defendant in the custody of a designated person or organization agreeing to supervise the defendant; (2) Place restrictions on the travel, association, or place of abode of the defendant during the period of release, including the holding by the court of the defendant's passport; (3) Require the defendant to report regularly to some officer of the court or peace officer, in such manner as the court directs; (4) Require the use of electronic monitoring of defendant's location, the testing of defendant for drug or alcohol use, or the installation and use of ignition interlock devices. The court may order the eligible defendant to pay all or a portion of the costs of such conditions, but the court shall consider how best to minimize the costs to the defendant and waive the costs for an eligible defendant who is indigent and who has demonstrated to the court an inability to pay all or a portion of the costs; (5) Require the defendant to seek employment, to maintain employment, or to maintain or commence an educational program; (6) Require the defendant to comply with a specified curfew; (7) Require the defendant to refrain from possessing a firearm or other deadly weapon; (8) Require the defendant to abstain from possession or use of alcohol or any controlled substance without a physician's prescription; (9) Require the defendant to undergo available medical, psychological or psychiatric treatment, including treatment for drug or alcohol dependency and remain in a specified institution if required for that purpose; (10) Require the defendant to return to custody for specified hours following release for employment, school, treatment, or other limited purpose; (11) Require the defendant to be placed on home supervision with or without the use of an electronic monitoring device. The court may order the eligible defendant to pay all or a portion of the costs of the electronic monitoring, but the court shall consider how best to minimize the costs of such condition to the defendant and waive the costs and ineligible defendant who is indigent and who has demonstrated to the court an inability to pay all or a portion of the costs; (12) Require the defendant to execute a monetary bond in a stated amount wherein the defendant promises to pay to the court the stated amount should the defendant fail to appear or abide by the conditions of release; (13) Require the execution of a monetary bond in a stated amount with sufficient sureties, or the deposit in the registry of the court of a sum in cash or negotiable bonds of the United States or the State of Missouri or any political subdivision; (14) Require the execution of a monetary bond in a stated amount and the deposit in the registry of the court of 10 percent, or such lesser sum as the court directs, of such sum in cash or negotiable bonds of the United States or the State of Missouri or any political subdivision; (15) Require the deposit of a property bond of sufficient value as approved and directed by the court; (16) Impose other conditions necessary to secure the appearance of the defendant at trial, or at any other stage of the criminal proceedings, or the safety of the community or other person, including but not limited to the crime victims and witnesses. (d) Should the court determine upon clear and convincing evidence that no combination of non-monetary conditions and monetary conditions will secure the safety of the community or other person, including but not limited to the crime victims and witnesses, then the court shall order the defendant detained pending trial or any other stage of the criminal proceedings. A defendant so detained shall, upon written request filed after arraignment, be entitled to a trial which begins within 120 days of the defendant's request or within 120 days of an order granting a change of venue, whichever occurs later. Any request by the defendant to continue the trial beyond the 120 days shall be considered a waiver by the defendant of the right to have the trial conducted within 120 days. (e) In determining whether to detain the defendant pursuant to subsection (d) or release the defendant with a condition or combination of conditions of release, if any, pursuant to subsection (c), the court shall base its determination on the individual circumstances of the defendant and the case. Based on available information, the court shall take into account: the nature and circumstances of the offense charged; the weight of the evidence against the defendant; the defendant's family ties, employment, financial resources, including ability to pay, character, and mental condition; the length of the defendant's residence in the community; the defendant's record of convictions; the defendant's record of appearance at court proceedings or flight to avoid prosecution or failure to appear at court proceedings; whether the defendant was on probation, parole or release pending trial or appeal at the time the offense for which the court is considering detention or release was committed; and a validated evidentiary-based risk assessment tool approved by the Supreme Court of Missouri. (f) A court detaining or releasing the defendant under this rule shall enter an order stating the condition or combination of conditions of release, if any, set and imposed by the court. If the defendant is detained and unable to comply with any condition of release, the defendant shall have the right to a release hearing pursuant to Rule 33.05. At any hearing conducted under Rule 33, the court shall permit but not require either party to make a record on the defendant's financial status and ability to pay any monetary condition. At such hearing, the court shall also make written or oral findings on the record supporting the reasons for detention or conditions set and imposed. The court shall inform the defendant of the conditions set and imposed, if any, and that the conditions of release may be revoked and the defendant detained until trial or other stage of the criminal proceedings for violation of any of the conditions of release and that a warrant for the defendant's arrest may be issued immediately upon notification to the court of any such violation.

gilchrist

One more question: Does Youngblood have a materiality requirement? The answer is: sort of. Remember that Youngblood violations require bad faith, and this seems to be key to understanding the value of the evidence that is being sought by the defense. In other words, it might be that you can presume materiality and prejudice based on the government's bad faith. There must have been something to that evidence if you deliberately failed to preserve it. That, anyway, is how I put together these two parts of Youngblood: The Due Process Clause of the Fourteenth Amendment, as interpreted in Brady, makes the good or bad faith of the State irrelevant when the State fails to disclose to the defendant material exculpatory evidence. But we think the Due Process Clause requires a different result when we deal with the failure of the State to preserve evidentiary material of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant

Dixon v City of STL MEMO

P motion for class certification and preliminary injuction granted D motion to dismiss denied P could not afford bail Filed class action suit asseting D violated constitutional rights to EP and substantive and procedural due process by detaining them after arrest without an opportunity to challenge the conditions of their release P claims When deciding bail commissioner looks at charges and prior convictions but not arrestee's ability to pay, risk of flight or danger to public and judge determines bail based on these facts If D can afford cash bond in full they are release If not - remain detained until first appearance which is held within 48 hours of arrest by videoconference P allege sheriff's deputies who escort arrestees to video hearings instruct them not to speak and specifically not to request bond modification Judge reads charges, states bail based on commissioner's recommendation and asks arrestee whether he intends to retain counsel Hearing is ½ minutes and is not on the record P allege that if he intends to contest bail amount, judge informs him he cannot request modification until he obtains counsel and sets a motion hearing For those eligible for public defender, takes about 5 weeks Those who do not qualify cannot afford to pay private attorney are detained longer P allege that even after they get counsel on motion for modification, judge's bail setting practices remain constitutionally inadequate in that the judge's fail to consider and arrestee's financial circumstances or make specific findings as to alternative release conditions Detainees in workhouse are exposed to dangerous and inhumane conditions such as extreme temps, lack of sanitation, vermin, and violence Period of incarcination leads to physical and mental health prob, loss of employment, eviction and family separation P requests Declaratory judgment

Editorial: Accused assailant exits jail, thanks to the bail project. Then the victim dies

Paid bail for Samuel Lee Scott Pays cash bail for poor Misdemeanors Gets released and fatally injures wife Previous charge was assault $5,000 bail Blame bail project for this as much as scott

Bordenkircher

Prosecutors can--in the give and take of plea bargaining--inform the defendant that they will bring additional, or more serious, charges if a defendant refuses to take the plea. In other words, prosecutors can threaten to "penalize" those defendants who choose to go to trial rather than plea. This does not count as vindictive prosecution. Defense attorneys and plea bargaining Note: can have incompetent representation even before trial. So the 6th amendment right to an attorney is not just a trial right. It attaches at every "critical stage." Pleas are just such a stage.

bagley

Re-statement of Agurs rule: Evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. And: this standard applies to whether the evidence was requested, was specifically requested, or if there was only a general request. And also: The Brady rule and the Strickland standard for prejudice are the same. And further: The 3 situations covered in Agurs all should use the same standard for assessing "materiality." And finally: no difference between impeachment evidence and other exculpatory evidence. Only question is: was it material? Court endorses this forumation in Cain but also combines in with language from Kyles. Kyles also made clear that the prosecutor has a duty to learn of any favorable evidence known to other government agents. Doesn't look like there is much life left to the idea that specific and general requests get treated differently under Brady.

griffin

Right against self-incrimination; Rule: Part of the Fifth Amendment privilege against self-incrimination is a right not to have the prosecution or the judge comment to the jury on the defendant's silence. Problems with justifying this: 1) it's not in the text, 2) it seems contrary to common sense (don't we always infer something from the defendant's refusal to testify?) and 3) How great is the pressure to testify (if the judge or prosecutor comments?) Doesn't all adverse evidence create pressure to testify? =compulsion versus inference from the silence makes the silence testimonial (Dressler's rationale) Also: you can get a jury instruction telling the jury not to infer anything from defendant's silence. (Carter v. Kentucky) Also: applies at guilt and at sentencing phase (over dissent of Scalia and Thomas). But: if the defense opens the door to commenting on silence, then prosecution can comment (e.g., "defendant never got a chance to explain to the prosecution": P can say, "D could have taken the stand!"). (United States v. Robinson) But: can make inference in civil cases, and can require admitting to past crimes in order to participate in a prison rehabilitation program. Also of course: plea bargaining! Can impeach with prior silence prior to being Mirandized.

Gideon

Rule: The right to court-appointed counsel at government expense is fundamental. But when does Gideon apply? Gideon involved a felony. So it looks like a right to counsel attaches with every felony charge. But what about misdemeanors? Or what about a felony where you just got probation? -Gideon right only applies when a person will be jailed Gideon - right to counsel is independent right under 6th Am. Right to counsel is available for critical stages of prosecution No right to counsel in misdemeanor cases When it applies All post indictment pretrial lineup Post-indictment interrogations Arraignments Attaches to D's first appearance before judicial officer after formal charges made - regardless of whether prosecutor present First appeal of right No right to counsel for 2nd tier discretionary state appeals or petitions to supreme court Does not attach to parole hearings or probation revocation hearings Right to counsel if you face jail - includes suspended sentence and later incarceration for probation violation

giglio

Rule 1: If evidence can go to the reliability of a witness, this evidence can fall under Brady's general rules regarding required disclosures by the prosecution. BUT: This evidence must be material, and not all favorable evidence is material evidence. Thus: Rule 2: Brady only requires the disclosure of evidence that is material. The materiality of the credibility evidence in Giglio was clear: the state's case really was all about whether this witness was credible. Rule 3: The office of the prosecutor is looked at as a whole, as is the government. If the state has the evidence, knowledge of this evidence is imputed to the prosecution. What is a Giglio list? A Giglio or Brady list is a list compiled usually by a prosecutor's office or a police department containing the names and details of law enforcement officers who have had sustained incidents of untruthfulness or some type of candor issues. As most law enforcement officers know, Giglio and Brady are two Supreme Court cases which touch upon the duties of prosecutors to turn over key materials to defense attorneys. These types of lists are used sometimes for disclosure purposes to defense attorneys in connection with prosecutions. When a police officer testifies as a government witness, the prosecutor has the same obligation as with other government witnesses to seek out and disclose Giglio/Brady type information. As a result, prosecutors seek out such information. The prosecutor may then use such information in a case and/or also maintain a file of that information for future cases. If an officer falls on a Giglio or Brady-type list, prosecutors may decline to take any criminal cases associated with these officers forward in the future. They can still do so, but often choose not to because some prosecutors are risk adverse. These types of lists, unfortunately seem to often be inconsistent, too broad and are not applied evenly through law enforcement employers. Furthermore, these types of lists can lead to employment issues without meaningful redress by the officer. Sometimes when a jurisdiction maintains a computerized Brady or Giglio list, more problems arise because data is not input in the same manner or with the same consistency by each prosecutor. As a result, an officer could be potentially Giglio-impaired, but still not on the list and then not be disclosed. This can cause problems later if a conviction results. Also called: Brady list - irrelevant to impeachment - not all favorable ev to D is material ev known by the state - if police know but prosecutor doesnt it is still enough

alford

Rule: A defendant may plead only to the existence of a factual basis for the charge, if he/she does not want to admit guilt. "An individual accused of a crime may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in acts constituting the crime." There is, in theory, judicial oversight of this--judge has to believe that the evidence does, in fact, contain strong evidence of defendant's guilt. (This is not the same as finding guilt beyond a reasonable doubt.) Nolo contendere versus Alford plea: different civil collateral consequences (nolo usually can't be used in civil court), but conceptually, with a nolo plea, you agree not to contest guilt (refuse to admit guilt) with an Alford plea you are positively claiming your innocence (deny guilt). With Alford, however, judge has to determine that there is a factual basis for the plea. Q: Is having such pleas a good idea? say i didnt do it but there is a factual basis for prosecution

faretta

Rule: Accused has right to an attorney, but also a right to represent him/herself. Can't have counsel forced on you--and have it forced on you by the government. But what about the fairness of the trial? Burger, in dissent: Although we have adopted an adversary system of criminal justice, see Gideon v. Wainwright, supra, the prosecution is more than an ordinary litigant, and the trial judge is not simply an automaton who insures that technical rules are adhered to. Both are charged with the duty of insuring that justice, in the broadest sense of that term, is achieved in every criminal trial. See Brady v. Maryland, 373 U. S. 83, 373 U. S. 87, and n. 2 (1963); Berger v. United States, 295 U. S. 78, 295 U. S. 88 (1935). That goal is ill-served, and the integrity of and public confidence in the system are undermined, when an easy conviction is obtained due to the defendant's ill-advised decision to waive counsel. The damage thus inflicted is not mitigated by the lame explanation that the defendant simply availed himself of the "freedom" "to go to jail under his own banner. . . ." United States ex rel. But no right to self-representation on appeal. Also, courts can appoint "standby counsel" to aid the pro se defendant. To waive counsel: must be knowing and voluntary. Requires factual and rational understanding of the proceedings against him). However, can be competent to stand trial but be required to have representation. A] defendant who elects to represent himself cannot thereafter complain that the quality of his own defense amounted to a denial of 'effective assistance of counsel."') 40 Geo. L.J. Ann. Rev. Crim. Proc. 515 n. 1601 (2011) (collecting cases from multiple jurisdictions, all of which support the statement that "a pro se defendant may not claim his or her own ineffectiveness as a ground for appeal"). The basic rationale for this rule is twofold. First, courts reason that a defendant who has made his bed (by electing to represent himself and thereby retaining direct control over his defense) must lie in it (by accepting the consequences of his decision). Second, courts worry that allowing pro se defendants to claim ineffective assistance would give defendants an incentive to sabotage their own trials. As an aside, the first rationale might extend to a defendant who retained counsel of his choice, but the second doesn't, and the Supreme Court has ruled that ineffective assistance claims are cognizable against retained as well as appointed lawyers. Cuyler v. Sullivan, 446 U.S. 335 (1980) (holding that there is "no basis for drawing a distinction between retained and appointed counsel" with respect to claims of ineffective assistance of counsel).

hill

Rule: An attorney's supplying a defendant with false information about his parole eligibility could give rise to a valid ineffective assistance of counsel claim, because the false information might have rendered the plea "involuntary." However, defendants must show both that the attorney fell below established standards of conduct and that they were prejudiced by the attorney's incompetence. In this context, prejudice means that but for counsel's errors, they would not have pled guilty and instead have gone to trial. Facts: defense attorney misinforms defendant about length of time he would be required to serve before becoming parole-eligible. Held: Don't reach competence, but find no prejudice. Why? No showing that the defense counsel's failure led defendant to plead guilty rather than go to trial. That just wasn't part of the record. Petitioner did not allege in his habeas petition that, had counsel correctly informed him about his parole eligibility date, he would have pleaded not guilty and insisted on going to trial. He alleged no special circumstances that might support the conclusion that he placed particular emphasis on his parole eligibility in deciding whether or not to plead guilty. Indeed, petitioner's mistaken belief that he would become eligible for parole after serving one-third of his sentence would seem to have affected not only his calculation of the time he likely would serve if sentenced pursuant to the proposed plea agreement, but also his calculation of the time he likely would serve if he went to trial and were convicted. Compare with: failure to investigate/discover potentially exculpatory evidence will lead to a finding of prejudice if it would have led defense counsel to change recommendation from "plead guilty" to "go to trial." And this (i.e., whether the recommendation would change) will depend in turn on how strong the evidence was. Compare with: failure to advise defendant of affirmative defense--whether this is prejudice depends on how likely the defense would succeed with the defense at trial. IAC - Incompetent lawyer? Yes! Gave misinformation about sentence. Prejudice? No! Can't show that Hill would have gone to trial rather than take plea.

ricketts

Rule: Defendants can breach, too. Pro tip: for complicated agreements, get them in writing, and be specific. NOTE: As a matter of constitutional law, as apart from departmental policy or state law or even good practice, prosecutors may withdraw a plea offer at any time before the guilty verdict. A plea bargain, even an accepted deal, has no constitutional significance, unless and until the court accepts it.

Brillion

Rule: Delay because of changing defense counsel is not ordinarily attributable to the state, absent a "breakdown in the public defender system." Lawyers: Ammons: heavy workload, moves for continuance. Alteri: life threatened, I'm out of here. Donaldson: need more time, heavy caseload. Gets reassigned. Sleigh: withdraws, modification of firm's contract Moore: files motion for dismiss for lack of speedy trial Delay by defense is usually counted against defendant. When defense fails to move the case forward, that's on the defense, not on the state, even though the public defender system is part of the state.

gray

Rule: Fill in the blank edits won't work. NOTE: BRUTON DOESN'T APPLY TO BENCH TRIALS Physical presence of defendant -- when? Right to be present at trial. Jury selection, jury instructions, sentencing, etc. Right not to have to wear prison garb. Shackling--binding--only if safety and flight risk. Allen says: in case of disruption, preference is for removal rather than citing defendant for contempt or binding the defendant. Deck: Visible shackles during penalty phase can violate a defendant's due process rights. Reason--could suggest to jury that a longer sentence is appropriate. Oyez: "are you sure?"

Barker v wingo

Rule: Four factor test for determining violation of the speedy trial right. What explains the delay? 16 continuances! No objection to first 11 continuances. 12: Baker moves to dismiss (denied) 13&14: no objection 15: State asks for continuance (sheriff sick); Baker objects 16: State asks to continue; Baker objects. Final trial date: Oct. 16: Baker moves to dismiss, motions denied. Goes to trial, loses. Speedy trial right: good for accused, good for society! See p. 196-197. Upshot: this is an amorphous right, which has an unusually severe remedy! Reject two rigid approaches: 1) fix a definite time period within which trial just has to happen, 2) trial when defense demands it. Let's go to balancing! How long was the delay? Must show some delay that was "presumptively prejudicial" (usually one year) Maybe best to think in terms of "threshold prejudice" After threshold is passed, then balance delay with other facts. What were the reasons for the delay? Who caused the delay? Which side? Was the delay in bad faith? Or for good reasons? (Can't find a witness, defense motions, etc.) What about "court congestion"? What about defense attorneys being overwhelmed? Did defendant assert the right? And if so, when? Failing to assert the right is going to make it hard to win a speedy trial motion At the same time, don't presume waiver from silence It's good evidence that the defendant is being deprived of his right to a speedy trial. Prejudice or: how the defendant gets hurt. Oppressive incarceration Anxiety and concern Damage to defense case -- this is the most important, because it risks the defendant's right to a fair trial. Holding: this is a close case, but no denial of a speedy trial right. Super long delay, but at the same time, no real prejudice. And Baker didn't really want a trial. He decided to roll the dice. (He lost.)

sanford

Rule: If there's a manifest necessity to declare a mistrial--as with a hung jury--then the prohibition on double jeopardy does not apply. Classic case of mistrial: JURY IS DEADLOCKED, SO THERE'S A HUNG JURY Issue there is then: did the judge call the mistrial too soon? Should he have given the juries another chance to work it out? Old days: no food or drink til you get a verdict! New case: no crossword until you get a verdict! I have indicated to you that there's two counts. I have reminded you of the oath that you have taken. I have given you reinstructions on reasonable doubt. I want you to go back, and I want you to continue to deliberate. Start at the beginning, if you have to. Go over every element or any part of this case you want to discuss. But you took an oath. I take mine seriously. I hope you do the same. Take them out. The jurors went back into the jury room for more deliberations at 2:14 p.m. Eleven minutes later, at 2:25 p.m., out came the jury's sixth note. It stated that the holdout juror was refusing to discuss the case and had begun doing crossword puzzles. The judge responded by ordering the bailiff "to go to the jury room and take all of the newspapers and all of the books and magazines — and whatever they need to write on is fine and dandy. Remove the others." Eighteen minutes later, deprived of a way to shield herself from the importuning of the other jurors, the holdout held out no more. Other cases, outside of a hung jury -- mistrial turns on the facts of the particular case, defer to judge. From Lett: The trial transcript does not reveal whether the judge discussed the jury's query with counsel, off the record, upon receiving this last communication. Id., at 209, n. 3, 644 N. W. 2d, at 745, n. 3. What is clear is that at 12:45 p.m. the judge called the jury back into the courtroom, along with the prosecutor and defense counsel. Once the jury was seated, the following exchange took place: "THE COURT: I received your note asking me what if you can't agree? And I have to conclude from that that that is your situation at this time. So, I'd like to ask the foreperson to identify themselves, please? "THE FOREPERSON: [Identified herself.] "THE COURT: Okay, thank you. All right. I need to ask you if the jury is deadlocked; in other words, is there a disagreement as to the verdict? "THE FOREPERSON: Yes, there is. "THE COURT: All right. Do you believe that it is hopelessly deadlocked? "THE FOREPERSON: The majority of us don't believe that— "THE COURT: (Interposing) Don't say what you're going to say, okay? "THE FOREPERSON: Oh, I'm sorry. "THE COURT: I don't want to know what your verdict might be, or how the split is, or any of that. Thank you. Okay? Are you going to reach a unanimous verdict, or not? "THE FOREPERSON: (No response) "THE COURT: Yes or no? "THE FOREPERSON: No, Judge." Tr. in No. 96-08252 (Recorder's Court, Detroit, Mich.), pp. 319-320. The judge then declared a mistrial, dismissed the jury, and scheduled a new trial for later that year. Neither the prosecutor nor Lett's attorney made any objection. Mistrial: judge terminates trial prior to verdict being reached. Party can make a motion, or judge can declare sua sponte.

richardson

Rule: If you can edit the confession in a way that safeguards the rights of the defendants, that's OK, and you can try the defendants together and admit the confession.

ruiz

Rule: Impeachment evidence is not required to be disclosed prior to a guilty plea. IT IS NOT CLEAR WHETHER THIS RULE APPLIES TO ALL BRADY EVIDENCE, OR JUST TO IMPEACHMENT EVIDENCE. CIRCUIT COURTS ARE SPLIT.

williams

Rule: Juries don't have to be 12. They can be 6. The number 12 seems mostly an historical accident. alibi rules do not violae right of self increimination suggests state can require reciprocal discovery

dinitz

Rule: Mistrials that are granted as a result of defendant's motion, usually do not implicate double jeopardy. Look at quote on p. 516 -- especially good (I want this!) Example of mistrial in protective order case. Preference against mistrials: why draw out the defendant's agony? But if the defense consents to the mistrial, then the mistrial will not prevent reprosecution. Why? The defense is saying: let's just start over, rather than us having to appeal and get a reversal, and then just have to do it all over again. GONNA BE IMPORTANT THAT DEFENDANT OBJECTS. Why? Shows that defendant thought there wasn't a manifest necessity--wanted to go on with the trial. But judge cut things short.

crawford v washington

Rule: Overrules Roberts. The confrontation clause requires the presence of the witness (and the ability to cross-examine) as to all "testimonial" statements. "Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination ... . [T]he only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation." A witness under the confrontation clause is someone who "gives testimony." What counts as testimonial (first try): Testimonial statements are formal declarations, i.e. those made to law enforcement or government personnel. Interrogations by police officers normally result in testimonial statements. Also applies to: testimony at preliminary hearings, before grand jury, or at a former trial. What counts as testimonial (second try): Statements are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of interrogation is to enable police assistance to meet an ongoing emergency.

kennedy

Rule: Prosecution must have provoked or goaded mistrial intentionally if double jeopardy is to apply based on a defendant's motion. Exception to rule about defense moving for a mistrial and double jeopardy not being implicated: if the prosecutor "goads" the defense into asking for a mistrial. Again, with the defendant's consent: usually means, jeopardy doesn't attach.

Betterman

Rule: Speedy trial rights do not apply at sentencing. Betterman is right that most cases end in pleas, but the speedy trial clause is a poor fit in this situation. Remedy here is in statutes and rules, not in the constitution, except maybe the due process clause.

hunter

Rule: The prohibition on multiple punishments for the same offense, does not apply to cumulative punishments for offenses brought at the same trial, so long as the desire of the legislature was clear that these punishments should be cumulative. And same thing with felony murder: To determine legislative intent regarding cumulative sentencing, we are to look first at the statutes under which the defendant was convicted. Villa-Perez, 835 S.W.2d at 903; McTush, 827 S.W.2d at 187. When our legislature rewrote Missouri's felony-murder rule in 1984, it was "with the explicit expression of intention that punishment for the felony murder 'shall be in addition to the punishment for commission of a related felony or attempted felony, other than murder or manslaughter.' § 565.021.2, RSMo 1986." Owens, 849 S.W.2d at 584. Inasmuch as our felony-murder statute "expressly intends multiple punishments for both second degree felony murder and the underlying felony, such punishments when imposed in a single trial do not constitute double jeopardy." Id. at 584[4]. Point I is denied. State v. Coody, 867 S.W.2d 661, 666 (Mo. Ct. App. 1993)

youngblood

Rule: Under Brady, the good or bad faith of the State is irrelevant when the State fails to disclose material and exculpatory evidence. However, in the case of a failure to preserve evidentiary material, of which it can be said it might have exonerated the defendant. Here, the defense needs to show bad faith (which kind of leads to the inference that if the police deliberately failed to preserve evidence that evidence probably was really helpful to the defense). - duty to preserve Holding: No bad faith here. What's the remedy for a Youngblood violation? In addition, McCarty's argument ignores the fact that the appropriate remedy for a Youngblood violation has not been determined by the Oklahoma courts, and as evidenced by the split of authority on the question, it was not a foregone conclusion that dismissal would be required. Some courts have held, as McCarty contends, that the only remedy for the bad faith destruction of potentially exculpatory evidence under Youngblood is the dismissal of all charges. See, e.g., State v. Lang, 176 Ariz. 475, 862 P.2d 235, 245 (App.1993); Lolly v. State, 611 A.2d 956, 960 (Del.1992); United States v. Day, 697 A.2d 31, 36 (D.C.1997). Other courts have held, however, that alternative remedies may be appropriate. See, e.g., United States v. Bohl, 25 F.3d 904, 914 (10th Cir.1994) (suppression of evidence); United States v. Cooper, 983 F.2d 928, 932-33 (9th Cir.1993) (suppression of evidence); Stuart v. State, 127 Idaho 806, 907 P.2d 783, 793-94 (1995) (favorable inference under spoliation doctrine); State v. Rains, 135 Ohio App.3d 547, 735 N.E.2d 1, 6 (1999) (suppression of evidence). Although the District Court of Oklahoma County ultimately concluded that dismissal of the charges against McCarty was the appropriate remedy, dismissal was not the inevitable result. We think that requiring a defendant to show bad faith on the part of the police both limits the extent of the police's obligation to preserve evidence to reasonable bounds and confines it to that class of cases where the interests of justice most clearly require it, i.e., those cases in which the police themselves by their conduct indicate that the evidence could form a basis for exonerating the defendant. Arizona v. Youngblood, 488 U.S. 51, 58, 109 S. Ct. 333, 337, 102 L. Ed. 2d 281 (1988). Bad faith, in other words, shows that merely "potentially useful" evidence could really be very very useful evidence to the defense. I like how this state court opinion puts these things together: In essence, for cases where the destroyed evidence is of unknown value, the Supreme Court's decision in Youngblood consolidates the three considerations which were enunciated in Paradis through its reasoning that materiality and prejudice to the defense can be presumed where the government acts in bad faith as that term was defined by the Court in Trombetta. Therefore, because of the unknown value of the evidence at issue in this case, we apply Youngblood and restrict our inquiry to the existence of governmental bad faith. And Youngblood was actually innocent: In 1998, Youngblood was released on parole, but was sent back to prison in 1999 for failing to register his new address, as required by Arizona sex offender laws. In 2000, upon request from his attorneys, Scott McNamara and Carol Wittels, with the Innocence Project acting as a consult, the police department tested the degraded evidence using new, sophisticated DNA technology. Those results exonerated Youngblood, and he was released from prison in August 2000. The district attorney's office formally dismissed the charges against Youngblood later that year. Shortly thereafter, the DNA profile from the evidence was entered into the national convicted offender database. In early 2001, officials got a hit, matching the profile of Walter Cruise, who is blind in one eye and is currently serving time in Texas on unrelated charges. In August 2002, Cruise was convicted of the crime and sentenced to 24 years in prison.

burks

Rule: When an appeals court reverses a conviction based on sufficiency of the evidence, the prohibition on double jeopardy applies. Rule: If the conviction is reversed because of trial error, the prohibition on double jeopardy does not apply. (Note that by the appeal, the defendant is in a sense consenting to this reversal: let's do this right -- compare this to objecting to a mistrial, and consenting to doing the trial over again.) See OJ: no second trial for purpose of affording prosecution another opportunity to supply evidence which it failed to muster in the first proceeding. Q: if this is right, how to explain the Missouri rule? (A: appeals court ruling is not a final judgment.) Note that the prosecution can appeal when the judge enters judgment notwithstanding the verdict (p. 511). Government says: there was no request here, you (the defense) could have found it, and it wasn't material, anyway. Main questions: was there a duty to disclose? Was this evidence material? The three situations of Brady: Knowing use of perjured testimony--this is always material (implicit: even if no request has been made). (This is a pre-Brady rule, and is looked at as laying the foundation for Brady.) Must disclose if evidence has "reasonable likelihood" of affecting the decision. Request for specific evidence (so prosecutor has notice), and evidence might have affected outcome of the trial. Failure to give the evidence in these cases is almost never excusable. General request, but there may be some evidence that is "obviously exculpatory"--in this case, this is pretty much like case 2. You should know, prosecutor. Two contexts of Brady --giving evidence prior to trial --analysis post-trial: did the non-disclosed evidence deprive the defendant of a fair trial? Note the difference between the prudent prosecutor and the constitutional duties of the prosecutor. What a prudent prosecutor should do is not the same as what he/she is constitutionally required to do. Rule: Complete disclosure is not required, nor is a matter of the prosecutor's willful failure to disclose. Only material evidence must be disclosed, which means evidence that would create a reasonable doubt as to the verdict that did not otherwise exist. If there is no reasonable doubt (about the guilt of the accused) whether or not the additional evidence is considered, then there is no Brady violation. Holding: No Brady violation in this case. There was enough evidence showing Sewell's potential for violence already. It was largely cumulative. Look at Brady violations in light of the whole record.

scott

Rule: When defendant wins dismissal on grounds unrelated to the sufficiency of the evidence, the prohibition on double jeopardy is not implicated. So it's really about the merits of the case (for the most part) When it attaches: when the jury is empaneled and sworn, or when (in a bench trial) the first witness is sworn (i.e., court begins to hear evidence). For pleas, when judge accepts plea and enters the conviction. (This is when you are placed "in jeopardy.") But don't forget mistrial rules, which may affect double jeopardy attaching. The idea is, the above rules apply, if everything in the trial goes relatively smoothly.

brady

Rule: When the prosecution suppresses evidence favorable to the accused that is relevant to guilt or to punishment this violates due process, irrespective of whether the suppression was done in good or bad faith. Rationale: the point is to give the defendant a fair trial. Further the interests of justice, too. And focus on--was the evidence favorable as opposed to: why was it withheld? Important: Brady applies to evidence that is material for guilt or punishment. So don't forget that Brady applies to sentencing as well as to trial. BUT THE RULE IN BRADY GETS QUALIFIED AND MODIFIED. DO NOT TAKE BRADY TO BE THE FINAL WORD. IT IS WAY TOO GENEROUS. Brady requires that the prosecution turn over evidence to the defense that is Material Relevant to guilt or punishment Favorable to the accused Within the actual or constructive knowledge or possession of anyone acting on behalf of the State Key passage/holding of Brady: We now hold that the suppression by the prosecution of evidence favorable to an accuse upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. The principle is not punishment of society for misdeeds of a prosecutor but avoidance of an unfair trial to the accused. Society wins out not only when the guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated fairly. An inscription on the walls of the Department of Justice states the proposition candidly for the federal domain: "The United States wins its point whenever justice is done its citizens in the courts." Materiality means something more than just "relevant": it has come to mean whether there was a reasonable probability that the result of the trial would have been different if the exculpatory material had been turned over before trial. In other words, materiality is relative to the other evidence. "[t]he materiality of Brady material depends almost entirely on the value of the evidence relative to the other evidence mustered by the state." Suppressed evidence that would be cumulative of other evidence or would be used to impeach testimony of a witness whose account is strongly corroborated is generally not considered material for Brady purposes. Conversely, however, undisclosed evidence that would seriously undermine the testimony of a key witness may be considered material when it relates to an essential issue or the testimony lacks strong corroboration. But be careful: there is "so-called Brady" evidence and "true Brady" evidence. You might imagine prosecutors as a default turning over all favorable evidence over to the defense, while suspending judgment on whether that evidence would really all things considered lead to undermining confidence in the verdict. So-called Brady evidence is just evidence that is exculpatory, but strictly speaking, Brady evidence is exculpatory evidence that is also material. And also the defense strategy and evidence matters to seeing how important the suppressed or non-disclosed information is. So here is a helpful 3-part breakdown: *The materiality test hinges on whether the defendant can prove that the absence of the evidence undermines confidence in the verdict. In analyzing materiality, courts often look at three factors: (1) the importance of the withheld evidence; (2) the strength of the rest of the prosecution case; and (3) other sources of evidence available to and used by the defense. The strength of the prosecution's case is the central variable in the materiality calculus. The stronger the government's case, the less likely it is that a particular item of evidence will be construed as material. (Medwed, Brady's Bunch of Flaws, p. 1541) What does it mean to be relevant to guilt or punishment? It means that Brady material would also include material that shows the defendant was involved with the crime, but maybe in a way that would expose him or her to lesser punishment. What is "favorable to the accused"? For the most part, it means evidence that is exculpatory, that is mitigating--either as to offense or to punishment--and which can be used to impeach a state witness, or otherwise cast doubt on the prosecution case. Impeachment evidence can be helpful to the defense, even if it is not directly exculpatory. Look at things from the perspective of a defense attorney: would they want it? And Brady refers to evidence that is in the possession of the state. If the police have it, and the prosecutors don't know it, that evidence can still be covered by Brady. The prosecution constructively possesses it. Important, but we'll see this in the cases, it's no longer the case that the defense has to make a specific or even a general request for Brady material, for Brady to apply. Implied in all cases is: Turn it over, prosecution (if it is exculpatory and material). One more note: Although the Supreme Court hasn't ruled on this, it's the consensus view that the Brady right is about a right to a fair trial, so there is no Brady duty during plea negotiations. Dilemma for prosecutors and Brady evidence: If this evidence is so confidence undermining, why are you still zealously prosecuting this case?q 1 suppression=non-disclosure 2upon requres - no longer requirement 3material - if there was a reasonable probability that the coutcome of the trial would have been different if ev would have been turned over before trial 4guilt or punishment 5irrespective of good faith Self-incrimination The Apprendi revolution Apprendi Audio: "What is the constitutional line?" Rule: Facts which increase a defendant's sentence beyond the statutory maximum must be found beyond a reasonable doubt by a jury. Court's statement: Other than the fact of prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. Facts: Plea agreement: guilty on one charge, carries with it a sentencing range of 5-10. But: based on facts found by the judge, based on preponderance of the evidence, sentence on the count goes to 12 years. Against the idea of a "sentencing factor," if that means a fact not found by a jury but that could affect the sentence imposed by the judge. Thomas: what, exactly, goes into making something a crime? What's a sentencing factor, and what's an element of a crime? O'Connor: Why was this so bad? The burden of proof wasn't on the defendant; the resulting sentence was not disproportional; there was no evidence of bad faith on the part of the state. Breyer: This isn't realistic. Note the carve out for Almendarez-Torres: can use prior conviction as a sentencing factor to enhance the maximum penalty. And: isn't there any easy workaround of the rule here? Make all sentences maximum of 50 years, and tell the judge to have fun! (Just make the statutory maximum really maximum). This was suggested by O'Connor: Thus, apparently New Jersey could cure its sentencing scheme, and achieve virtually the same results, by drafting its weapons possession statute in the following manner: First, New Jersey could prescribe, in the weapons possession statute itself, a range of 5 to 20 years' imprisonment for one who commits that criminal offense. Second, New Jersey could provide that only those defendants convicted under the statute who are found by a judge, by a preponderance of the evidence, to have acted with a purpose to intimidate an individual on the basis of race may receive a sentence greater than 10 years' imprisonment. Next big move: what about statutory guidelines that dictate a sentencing range? Why have guidelines in the first place? Uniformity in sentencing: treat similarly situated defendants alike.

santobello

Rule: When the state fails to live up to its side of a plea bargain, that's a breach and a due process violation, and the defendant is entitled to an appropriate remedy, including specific performance, or a chance to reenter a new plea. Compare facts of Santobello with Benchimol, where prosecutor only was "less than enthusiastic" in his recommendation. Holding: no breach. Just have to make the recommendation; don't have to be enthusiastic about it.

hudson

Rule: civil penalties are not crimes, because basically crimes are what get you put in jail. Should be familiar: intents/effects test. But: juvenile proceedings can implicate double jeopardy (despite the idea that these are really "civil" proceedings). Application: From the above authorities, it is clear that administrative suspension or revocation of a driver's license has traditionally been viewed, not as punishment for a driver's criminal offenses or traffic violations, but as remedial action prompted by the need to protect the public by removing dangerous drivers from the roads. The defendants in this appeal nevertheless argue that, despite this historical understanding, administrative license revocation must now be viewed as "punishment" under Halper, Austin, and Kurth Ranch. The defendants rely on the following language from Halper: But how do we tell if it's the "same offense"? Rob 5 different people on different days? (One robbery or 5?) Rob 5 different people on the same day? (One robbery or 5?) SOMEWHERE HERE IS THE MOVIE DOUBLE JEOPARDY'S MISTAKE (second murder is different time and different place, different crime). Steal a six pack? (One theft or 6?) Steal a car for 90 days (One theft or 90?) Wilful tearing of mailbags -- different bags, what about cuts to the same bag? THESE ARE BY AND LARGE ISSUES OF STATUTORY INTERPRETATION + RULE OF LENITY

darden

Rule: due process argument only if prosecutor's argument "so infected the trial with unfairness." Examples: manipulate, misstates the evidence; did not violate right to remain silent. - Improper and prejudice = constitutional violation and new trial

Don't Blame the Bail Project for Marcia Hartman's Murder (PDF)

Samuel Lee Scott Convicted of fourth degree domestic assault 3 months earlier Bail project was ATM BAil project should not be blamed for this Get rid of cash bail

herrera

Summary: 1) No argument that state law barring new evidence after 30 days was fundamentally unfair 2) Not a claim that evidence at trial was legally insufficient. 3) Actual innocence itself not the basis for relief, but as predicate ("gateway") for hearing on habeas petition that would otherwise be procedurally barred First habeas: id unreliable deined by state & feds. Successive habeas petition -- I'm innocent based on newly discovered evidence (see handout for letter). There's some appeal to the idea that it's wrong to kill an innocent person!But at the same time, look at the evidence in this case. System isn't: innocence at all costs. Once you get a fair trial -- presumption of innocence disappears. In the eyes of the law, Herrera is a murder! He missed the deadline. Texas can cognize this claim. You need an independent constitutional violation for this to keep going. We're about constitutional violations, not errors of fact. Some abuses of the writ can be overcome under a miscarriage of justice claim -- you say you are innocent and this opens the door to you presenting your constitutional claim. So actual innocence is gateway to presenting a constitutional claim, and not a freestanding claim in its own right. Of course, you can always apply for clemency. We can assume--for the sake of argument--that maybe there's a claim of actual innocence that would be so glaring that we would hear it on habeas. But that standard is really high. And it's not met in this case. Some concurring opinions want to say: on the facts, just no way this guy is innocent. Scalia wants to say: you can assume he might have a claim, and decide on that basis, but let's just say: can't make this type of claim. Blackmun, dissenting: executing an innocent person is a violation of the 8th and 14th amendments, for obvious reasons. Last paragraph of dissent (not in casebook, and not joined by any dissenters): V I have voiced disappointment over this Court's obvious eagerness to do away with any restriction on the States' power to execute whomever and however they please. See Coleman v. Thompson, 501 U. S. 722, 758-759 (1991) (dissenting opinion). See also Coleman v. Thompson, 504 U. S. 188, 189 (1992) (dissent from denial of stay of execution). I have also expressed doubts about whether, in the absence of such restrictions, capital punishment remains constitutional at all. Sawyer v. Whitley, 505 U. S., at 343-345 (opinion concurring in judgment). Of one thing, however, I am certain. Just as an execution without adequate safeguards is unacceptable, so too is an execution when the condemned prisoner can prove that he is innocent. The execution of a person who can show that he is innocent comes perilously close to simple murder. Latest definition of actual innocence: (McQuiggin v. Perkins) We hold that actual innocence, if proved, serves as a gateway through which a petitioner may pass whether the impediment is a procedural bar, as it was in Schlup and House, or, as in this case, expiration of the statute of limitations. We caution, however, that tenable actual-innocence gateway pleas are rare: "[A] petitioner does not meet the threshold requirement unless he persuades the district court that, in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt." Schlup, 513 U. S., at 329; see House, 547 U. S., at 538 (emphasizing that the Schlup standard is "demanding" and seldom met). And in making an assessment of the kind Schlup envisioned, "the timing of the [petition]" is a factor bearing on the "reliability of th[e] evidence" purporting to show actual innocence. Schlup, 513 U. S., at 332.

agurs

Should prosecution have disclosed background information about Sewell? Agur's argument: I killed him, but he attacked me first. I was screaming for help, after all! And, remember, he had two knives with him. Not me. Defense files for new motion: we didn't know Sewell had a prior criminal record (of violence) and the prosecutor didn't tell us, and this evidence would have been admissible--even if Agurs didn't know about it (in the evidence sense, it was relevant). The Burks opinion noted that this court has 'long recognized' that evidence of past violent acts by a deceased is admissible in a homicide case in which the issue of self-defense is raised because '(s)uch evidence is relevant on the issue of who was the aggressor. . . .'3 A footnote to that observation admonished that '(i)t bears emphasis . . . that as to the issue of who was the aggressor it is irrelevant that the defendant did not know about the deceased's character.'4 On learning of this long-recognized rule, of which he had been entirely ignorant, counsel became alarmed and immediately sought to discover whether or not Sewell did, in fact, have a criminal record. He went to the United States Attorney's office and, finding the Assistant who had prosecuted the appellant absent, spoke with one of the other Assistants. The Assistant took appellant's counsel to a 'closed files' room and located the file concerning the prosecution of the appellant. There, close to the front of the folder, they found a paper disclosing that Sewell had been convicted in 1963 for assault and carrying a dangerous weapon and in 1971 for carrying a dangerous weapon. The weapon, in each instance, had been a knife.

strickler

Speaks in terms of whether the evidence would have undermined confidence in the verdict. Eyewitness ID's Cain, but other statements (not disclosed to defense) suggest he wasn't that confident. Was this material? (Might not be if other evidence shows guilt beyond a reasonable doubt.) Even if we look at the whole record, this evidence could have been a game-changer.

Bell v. Wolfish, 441 U.S. 520, 540, 99 S. Ct. 1861, 1874-75, 60 L. Ed. 2d 447 (1979)

The Government also has legitimate interests that stem from its need to manage the facility in which the individual is detained. These legitimate operational concerns may require administrative measures that go beyond those that are, strictly speaking, necessary to ensure that the detainee shows up at trial. For example, the Government must be able to take steps to maintain security and order at the institution and make certain no weapons or illicit drugs reach detainees. Restraints that are reasonably related to the institution's interest in maintaining jail security do not, without more, constitute unconstitutional punishment, even if they are discomforting and are restrictions that the detainee would not have experienced had he been released while awaiting trial. - ok to detain when prison conditions terrible; not ideal but deference to prison wardens on how to detaim

indiana v edwards

The Supreme Court ruled that the Constitution does not forbid states from insisting on representation by counsel for those competent enough to stand trial but who are impaired by severe mental illness to the point that they are not competent to conduct trial proceedings by themselves. In other words, to represent yourself you have to show knowing and voluntary waiver and that you are competent to proceed pro se (although the standard for showing the later is not clear). Can someone who proceeds pro se make an ineffective assistance claim against him or her-self? No.

blockburger

The facts: what are the charges? 5 counts of sale of morphine. Count 2: sale of drug not in original package on day x Count 3 sale of drug not in original package on day y Count 5: sale on day y without written order of the purchaser Objection: 2&3 counts are a single offense (argument: these was a continuous offense, not discrete offenses) 3&5 counts are the same offense (this was of the same drug on the same day) But: court holds: 2&3 are separate sales made at different times. Narcotics act criminalizes the sale of drugs, not the selling of drugs Each sale constitutes a distinct offense 3&5 There was one sale, but were there two distinct offenses? Yes. Why? Each of the offenses created requires proof of a different element. Rule: Where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offense or only one is whether each provision requires proof of an additional fact which the other does not. In other words: two crimes are the same offense unless each crime requires proof of an additional element that the other does not require. So: a lesser included offense is the "same offense" as the greater as it does not require proof of an additional element that the greater offense does not require. So: attachment of jeopardy of a greater offense bars retrial for lesser included offenses. Attachment of jeopardy for a lesser included offense bars retrial for a greater offense. Making it really simple (from Dressler & Thomas): Crime 1 requires proof of elements A, B, and C. Crime 2 requires proof of elements A, B, and D. These are separate offenses, because although they both share A & B, they each have an element that the other does not. Crime 1 requires proof of elements A, B, and C. Crime 2 requires proof of elements A and B. These constitute the same offense, because Crime 1 and Crime 2 do not each have an element that the other does not. In short, greater offense conviction bars lesser offense conviction, and vice versa. Example: possession of marijuana and possession of marijuana with intent to distribute. These would have to merge at sentencing if the jury found guilt in both cases. Some more examples: Conspiracy and substantive offense are two separate offenses. Why? Conspiracy contains the extra element of agreement. Example: A conviction for burglary and a conviction for trespassing based on the same event may not stand because trespassing does not contain an element that the burglary does not. Example (Brown v. Ohio): temporary taking of motor vehicle and stealing of motor vehicle -- later just adds intent to permanently deprive).

Pena-Rodriguez

exception to tanner; racist comment in deliberation; we allow investigation in jury to make sure racism did not have effect on verdict

flowers

Thomas, in Flowers: Clarence Thomas: Well, did your -- were any peremptories exercised by the defendant? Sheri Lynn Johnson: They were. Clarence Thomas: And what was the race of the jurors struck there? Sheri Lynn Johnson: She only exercised peremptories against white jurors. But I would add that the motive -- her motivation is not the question here. The question is the motivation of Doug Evans. Batson applies to (extensions from the facts of Batson): Prosecution trying to strike black jurors from case with black defendant. Prosecution trying to strike black jurors from case with white defendant. Defendant trying to strike on the basis of race. No strikes based on gender (i.e., Batson rules apply). Shift from rights of defendant to a fair trial to rights of jurors to serve. No Supreme Court decision yet applying Batson to strikes based on religion. (What about political beliefs?)

Ellis v. State, 773 S.W.2d 194, 197 (Mo. Ct. App. 1989)

Very little constraints -- and they can be used to further the government's investigatory purposes. They can subpoena witnesses and documents. Compare this to the comparatively limited powers of the police.

maryland v craig

What happens here: child is deemed competent to testify; testifies under oath; judge, jury and defendant are able to view by video the demeanor of the witness. Defendant has the ability to cross examine. This adds up to reliability, or so says the majority. And state says: protect the child against trauma. And we've made a case-specific finding of this; not just a general policy statement. Rule/holding: In cases where a child is testifying, it is good enough if that child testifies by means of a one-way closed circuit television. What we need, though, is a) assurances of the reliability of the testimony and b) a strong public policy reason. We have both of those here. Note how this sounds a lot like the justification for hearsay exceptions: is it reliable? If so, then let's no worry so much about whether or not the person is testifying. But be careful. The rationale for this case has been substantially undermined by subsequent cases especially Crawford. Craig speaks only of a preference for confrontation, not an absolute command. Crawford speaks in a very different register. Craig speaks in terms of reliability as the main thing confrontation goes for. Scalia in Crawford (and in dissent here) speaks of the right being about confrontation period, not about the possible rationale for it. Scalia engages the policy debate in his Crawford dissent, but really believes that it is irrelevant. So contrast (O'Connor v. Scalia): confrontation as a means to reliability versus confrontation as a stand alone requirement, as a right you have, even if the testimony bears indicia of reliability. Don't give up a jury trial just because defendant is obviously guilty. Defendant still gets this right. But Craig has not been overruled. And this causes courts some confusion.

douglas v california

While this Court has never recognized a "constitutional right to an appeal," it has "held that if an appeal is open to those who can pay for it, an appeal must be provided for an indigent." Jones v. Barnes, 463 U. S. 745, 751 (1983); see also Douglas v. California, 372 U. S. 353 (1963); Griffin v. Illinois, 351 U. S. 12, 18 (1956) (plurality opinion). Today, criminal defendants in nearly all States have a right to appeal either by statute or by court rule.

taylor v louisiana

fair cross section requirement, How did the law here work to exclude women? La. Const., Art. VII, § 41, read, in pertinent part: "The Legislature shall provide for the election and drawing of competent and intelligent jurors for the trial of civil and criminal cases; provided, however, that no woman shall be drawn for jury service unless she shall have previously filed with the clerk of the District Court a written declaration of her desire to be subject to such service." Rule: Systematic exclusion of a "significant and distinct community group" from the jury pool gives the defendant cause of action under the 6th Amendment for the jury not being selected from a "fair cross section" of the community. Defendant has to prove 3 things: Exclusion affects a "distinctive group" Representation of that group is unreasonable in proportion to the number of that group in the community ("disparity" between pool and community). The underrepresentation is a result of systematic exclusion. Do not have to show discriminatory intent (versus equal protection claim), only systematic exclusion. Systematic exclusion can be shown by the impact of the rule. And: systematic exclusion doesn't mean deliberate exclusion. It means exclusion as a product of the system. The "disproportionate and consistent exclusion of women from the [Jackson County] jury wheel and at the venire stage," the Court concluded, "was quite obviously due to the system by which juries were selected."

us v mandujano

grand jury reform, grand jury witness has no constitutional right to have counsel present

US v CAlandra

illegally seized evidence can be used in grand jury

mitchell -

carter applies to sentencing

US v Nebbia

court doesn't need to accept cash bond if it was illegally obtained because that is not the type of bail likely to secure D's presence

bank of nova scotia v us

dismissal not proper remedy unless D can demonstrate prejudice

henderson

knowing - A knowing plea requires receiving adequate notice of the offense to which you are pleading guilty. You must have "real notice of the true nature of the charge." There is no need in this case to decide whether notice of the true nature, or substance, of a charge always requires a description of every element of the offense; we assume it does not. Nevertheless, intent is such a critical element of the offense of second-degree murder that notice of that element is required. (Henderson pleads guilty to killing but not to intentional killing.)

United States v. Goodwin,

merely deciding to opt for a trial by jury--with the result that a felony charge is now filed--is not presumptively vindictive. This allows prosecutors flexibility in charging without fear of being charged with vindictiveness. TRIAL PENALTY. Reason? Give maximum flexibility for plea bargaining. However, if objective evidence shows that the decision to pursue a more serious charge (or additional charges) is motivated by a desire to punish the defendant, then you might win a claim on vindictive prosecution. Hard to prove. In general, pre-trial stuff is prosecutorial-discretion-land.

coleman v alabama

preliminary hearings open to public, P bears burden to show probable cause - preserve evidence

hurtado v california

right to grand jury does not extend to states

tanner

role of the jury; No 6th amendment violation here. Protection has to be at the front end, can't do it after trial. Voir dire Judge and attorneys observe jury during trial Jurors observe each other Non-juror evidence post-verdict. Importance of finality of verdict, and protecting privacy of deliberations. - drug use injury room -external influence - we can investogate - internal influence - harder only in extreme circumstances

goldsby v US

states provide D right to cross examine pursuant to local/state rule

crawford v washington

testimonial hearsay cannot be presented at trial unless declarant is unavailable an D has had opportunity to cross examine - preserve testimony

Burch v Louisiana,

the Court found Louisiana's law that allowed criminal convictions on 5 to 1 votes by a six-person jury violated the Sixth Amendment right, incorporated through the Fourteenth Amendment, of defendants to a trial by jury. If a jury is to be as small as six, the Court said, the verdict has to be unanimous.

Williams

the Court said: DNA collected during sexual assault examination can be given via surrogate testimony either by being "expert opinion" or because it is not testimonial (was not prepared for this particular criminal investigation; just tried to match DNA with an at-large criminal). 3/4 of juries can concur

boykin

volunatariness of pleas - A voluntary plea is one that is not a result of ignorance, incomprehension, coercion, terror, inducement, or subtle or blatant threats. Same as voluntariness in other areas of constitutional criminal procedure (consent, confessions), pretty much (see p. 146 of text: Brady decision). No threats or misrepresentation or bribes. It's not voluntary just because the maximum sentence (which you might get if you went to trial) is very long. Prosecutors can even threaten to up the charges if no plea deal is reached: still voluntary if the plea is accepted. This is not vindictive prosecution, believe it or not. Things are just different in the plea context. You can always turn down the plea. In the "give-and-take" of plea bargaining, there is no such element of punishment or retaliation so long as the accused is free to accept or reject the prosecution's offer. (Bordenkircher, below.) The fact of a "trial penalty" does not render pleas involuntary.

burch

was a case decided by the United States Supreme Court that invalidated a Louisiana statute allowing a conviction upon a nonunanimous verdict from a jury of six for a petty offense. The statute allowed for conviction if only five jurors agreed, and this was held to be a violation of the Sixth Amendment.[2]