Criminal Procedure: Adjudication

Batson 4-Step Process

(1) Opponent of a peremptory challenge has made out a prima facie case of racial discrimination (2) Burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation (3) If a race-neutral explanation is tendered, the trial court must then decide whether the opponent of the strike has proved purposeful racial discrimination (4) Judge makes final call

Federal Rules of Criminal Procedure: Rule 8 - Joinder of Offenses or Defendants

(a) Joinder of Offenses. The indictment or information may charge a defendant in separate counts with 2 or more offenses if the offenses charged—whether felonies or misdemeanors or both—are of the same or similar character, or are based on the same act or transaction, or are connected with or constitute parts of a common scheme or plan. • Same or similar act/transaction or • Connected regarding common schemer plan (b) Joinder of Defendants. The indictment or information may charge 2 or more defendants if they are alleged to have participated in the same act or transaction, or in the same series of acts or transactions, constituting an offense or offenses. The defendants may be charged in one or more counts together or separately. All defendants need not be charged in each count. • If they participated in the same act/transaction

Federal Rules of Criminal Procedure Rule 26.2 - Producing a Witness's Statement

(a) Motion to Produce • After a witness other than the defendant has testified on direct examination, the court, on motion of a party who did not call the witness, must order an attorney for the government or the defendant and the defendant's attorney to produce, for the examination and use of the moving party, any statement of the witness that is in their possession and that relates to the subject matter of the witness's testimony. (b) Producing the Entire Statement • If the entire statement relates to the subject matter of the witness's testimony, the court must order that the statement be delivered to the moving party. (c) Producing a Redacted Statement • If the party who called the witness claims that the statement contains information that is privileged or does not relate to the subject matter of the witness's testimony, the court must inspect the statement in camera. After excising any privileged or unrelated portions, the court must order delivery of the redacted statement to the moving party. If the defendant objects to an excision, the court must preserve the entire statement with the excised portion indicated, under seal, as part of the record. (d) Recess to Examine a Statement • The court may recess the proceedings to allow time for a party to examine the statement and prepare for its use. (e) Sanction for Failure to Produce or Deliver a Statement • If the party who called the witness disobeys an order to produce or deliver a statement, the court must strike the witness's testimony from the record. If an attorney for the government disobeys the order, the court must declare a mistrial if justice so requires.

Federal Rules of Criminal Procedure: Rule 14 - Relief from Prejudicial Joinder

(a) Relief. If the joinder of offenses or defendants in an indictment, an information, or a consolidation for trial appears to prejudice a defendant or the government, the court may order separate trials of counts, sever the defendants' trials, or provide any other relief that justice requires. (b) Defendant's Statements. Before ruling on a defendant's motion to sever, the court may order an attorney for the government to deliver to the court for in camera inspection any defendant's statement that the government intends to use as evidence.

Federal Rule Criminal Procedure 11(c)(1)(A)

(c) Plea Agreement Procedure. (1) In General. An attorney for the government and the defendant's attorney, or the defendant when proceeding pro se, may discuss and reach a plea agreement. The court must not participate in these discussions. If the defendant pleads guilty or nolo contendere to either a charged offense or a lesser or related offense, the plea agreement may specify that an attorney for the government will: (A) not bring, or will move to dismiss, other charges; (B) recommend, or agree not to oppose the defendant's request, that a particular sentence or sentencing range is appropriate or that a particular provision of the Sentencing Guidelines, or policy statement, or sentencing factor does or does not apply (such a recommendation or request does not bind the court); or (C) agree that a specific sentence or sentencing range is the appropriate disposition of the case, or that a particular provision of the Sentencing Guidelines, or policy statement, or sentencing factor does or does not apply (such a recommendation or request binds the court once the court accepts the plea agreement).

Pre-trial resolution accomplishes 3 Important Goals

1) It makes the trial go more smoothly and efficiently 2) it makes it easier to keep the jury from being prejudiced by testimony that the judge ultimately rules inadmissible 3) It facilitates plea bargaining by forcing both sides to take a realistic look at the flaws in their cases

3 Categories of Brady

1) When the prosecutor knowingly uses perjured testimony amounting to virtual per se reversible error (Mooney) 2) When the defense made a specific request for Brady material, putting the prosecution on adequate notice, and the suppression of the evidence requested *might have* affected the outcome of the trial (classic Brady situation) 3) When there was either a general request for Brady disclosure or no request for Brady disclosure (either way, insufficient notice to the prosecutor) but the undisclosed evidence *creates reasonable doubt* in the defendant's guilt that did not otherwise exist (Agurs)

When Prosecutor should not bring charges

1) When the prosecutor knows that the charges are not supported by probable cause 2) A prosecutor should not institute, cause to be instituted, or permit the continued pendency of criminal charges in the absence of sufficient admissible evidence to support a conviction • Probable cause standard is the minimum line for ethical conduct while sufficient admissible evidence is the aspirational standard

2 Main Alternatives to Bail System

1. Release on nonfinancial conditions • Own recognizance • Restricts liberty of ∆ in various ways • Court proceedings, check-in with pretrial release program 2. Release under "Deposit Bail" • Bypass professional bondsman and provide for $ bond to be posted directly with the court [nearly all of which is refunded if the ∆ satisfies all pre-trial conditions]

Mooney Test

Whether there is *any reasonable likelihood* that the perjured testimony affected the jury's judgment

Federal Sentencing Guidelines

1984 - Congress authorized the development of the Federal Sentencing Guidelines • Starts in late 60s and hits high point in 1984 o Enactment of Federal Sentencing Guidelines → came into effect in 1987 o Started a movement in the states to reflect FSG • Example o §2B3.1 Robbery • Base Offense Level: 20 • Sentencing process was only done in preponderance of evidence and determined by judge • Pleading guilty would be open • No parole for violent felonies • In federal, moving over to next Criminal History category is a complicated evaluation of the prior history

Uttect v. Brown***

4 Principles 1) Criminal ∆ has right to impartial jury 2) State has strong interest in having jurors who are able to apply capital punishment within the framework state law prescribes 3) Can be excused for cause 4) Determining whether the removal would vindicate State's interest

Mullaney v. Wilbur

Appellant was convicted of murder. o Maine requires defendants to prove by a preponderance of the evidence that they acted in the heat of passion. Appellant argued that it was incumbent upon the State to prove the absence of the heat of passion. o Affirmed. The prosecution must prove beyond a reasonable doubt the absence of the heat of passion on sudden provocation when the issue is properly presented in a homicide case. o To prove that a defendant did not act in the heat of passion, it may be established by adducing evidence of the factual circumstances surrounding the commission of the homicide. o Murder in ME • (1) Causing death of another with malice aforethought • Premeditation • (2) Created a presumption of malice and therefore • (3) ∆ had burden to prove lack of malice provocation o Presumption of malice was impressible • Can't shift burden to ∆

Powell v. Alabama

Brief Fact Summary • African-Americans accused of rape were not given adequate counsel. Synopsis of Rule of Law • "Where the defendant is unable to employ counsel, and is incapable of making his own defense... it is the duty of the court, whether requested or not, to assign counsel for him as a necessary requisite of due process of law; and that duty is not discharged by an assignment at such a time or under such circumstances as to preclude the giving of effective aid in the preparation and trial of the case." Facts • A group of African-American youths were on a freight train through Alabama. They got into a fight with some white youths, throwing the white boys from the train. A message was sent, requesting all blacks be removed from the train. Two white girls on the train testified that they had been raped by six different youths in turn. The youths were taken into custody. The community was very hostile, as a mob met the youths. The trial judge appointed "all members of the bar" for the purpose of the arraignment. The defendants themselves were illiterate and "ignorant". They were all tried separately, each trial lasting a day, convicted, and sentenced to death. Issue. • Whether the defendants had sufficient counsel. • Whether the Due Process Clause of the Fourteenth Amendment had been violated. Held. • No, the "defendants were not accorded the right of counsel in any substantial sense." The Supreme Court first observed that by appointing "all members of the bar" for the arraignment, "such designation of counsel " was either so indefinite or so close upon the trial as to amount to a denial of effective and substantial aid." This unknown number of members "would not" have been given that clear appreciation of responsibility or impressed with that individual sense of duty which should and naturally would accompany the appointment of a selected member of the bar." The "ignorant" and "illiterate" status of the defendants, coupled with the hostility of community "were put in peril" within the first moments of representation. Finally, the Court noted that when counsel was in place that "neither [the defense counsel] nor the court could say what a prompt and thoroughgoing investigation might disclose as to facts" as there had been no proper investigation, and no opportunity to do so. • No. Given the hostile circumstances, the illiterate status of the defendants, the close surveillance, their isolation from their families, and that they "stood in deadly peril of their lives," the failure of the trial court to "give them reasonable time and opportunity to secure counsel was a clear denial of due process." Discussion • "The necessity of counsel [is] so vital and imperative that the failure of the trial court to make an effective appointment of counsel was likewise a denial of due process within the meaning of the Fourteenth Amendment."

United States v. Armstrong

Brief Fact Summary • Armstrong was among a group of respondents who sought to challenge the fact that they were being federally prosecuted along racial lines. Synopsis of Rule of Law • In order to prevail in a defense for selective prosecution, it is incumbent upon the defendant to prove that persons of a different race were not also prosecuted. Facts • The respondents in this matter responded to their indictment on charges of conspiring to possess with intent to distribute more than fifty grams of crack by filing a Discovery Motion and an Affidavit alleging that the defendants were being selectively prosecuted because they were black. When the government failed to provide proof of its prosecutions, which would indicate the race of all individuals indicted within a certain timeframe, the District Court dismissed the case. On Appeal, the Court of Appeals for the Ninth Circuit also held that "a defendant is not required to demonstrate that the government ahs failed to prosecute others who are similarly situated." The Supreme Court granted cert, to determine who has the burden of proving the selective prosecution. Issue • Whether criminal defendants who pursue selective prosecution claims demonstrate people of other races were not prosecuted for similar crimes. Held • Chief Justice Rehnquist, on behalf of the court, wrote the majority opinion which held that it is incumbent upon defendants to demonstrate that people of other races have not been similarly prosecuted. Dissent • Justice Stevens dissented noting a great disparity between defendants who are accused of crimes involving crack cocaine and those who are accused of other drug-related crimes. Discussion • A selective prosecution claim is not a defense against a crime but an independent assertion that the prosecutor has brought the charge for reasons forbidden by the constitution. Thus, when a defendant makes such a harsh assertion, he should be prepared to prove it.

Ashe v. Swenson

Brief Fact Summary • Ashe was one of four men arrested for robbing six men who were playing poker in the basement of the home of John Gladson in January of 1960. • He was acquitted of the charges for one of the robberies and was brought to stand trial for a second. This case is dispositive of the second trial. Facts • Early in the morning of January 10, 1960, six men were engaged in a poker game in the basement of the home of John Gladson. • Suddenly, 3-4 men broke into the basement and robbed each of the players; thereafter, they fled in one of the victim's cars. • Later that morning, three men were found near the stolen car, which had been abandoned, and they were arrested. • Ashe was found some distance away from the others. In May of that year, Ashe stood trial for one of the robberies and was found not guilty due to insufficient evidence. Six weeks thereafter, prosecution sought to bring him to trial on another victim's robbery and he filed a Motion to Dismiss based on the previous acquittal. Held • A second prosecution for a crime arising out of the same course of events is impermissible. • Reversed and Remanded. Dissent • Justice Burger dissented, noting that the complainant in the second trial was different than in the first, and therefore the parties are not the same as required by Double Jeopardy. Concurrence • Justice Brennan concurred, noting that this case falls squarely within Double Jeopardy and therefore no subsequent prosecutions should be allowed. Discussion • Double Jeopardy bars subsequent prosecution of any crime for which a defendant has already been tried or which arises out of the same course of events. • Additionally, it should be noted that the prosecution's case in the first cause of action was weak, at best. Once he realized the faults in his prosecution, he was able to build a better case and thus had an unfair advantage over the defendant. • That is why Double Jeopardy was created, to protect a defendant from an unfair advantage.

Mistretta v. United States

Brief Fact Summary • Congress adopted the Sentencing Reform Act of 1984 (Act) in an effort to address the widespread disparity in the scope and extent of punishment in criminal cases in the United States. The Act created the United States Sentencing Commission devise guidelines for sentencing, and John M. Mistretta (Petitioner) challenged this as an unconstitutional delegation. Synopsis of Rule of Law • The "intelligible principle test" applies to congressional delegations. As long as the act by Congress includes an intelligible principle to which the delegee is directed to conform, the legislative action is not a forbidden delegation of legislative power. The Supreme Court of the United States has ruled it "constitutionally sufficient if Congress clearly delineates the general policy, the public agency which it to apply it, and the boundaries of this delegated authority." Facts • Petitioner was indicted in the United States District Court for the Western District of Missouri on three counts centering in a cocaine sale, and moved to have the promulgated guidelines ruled unconstitutional on the grounds that Congress delegated excessive authority to the Sentencing Commission to structure the guidelines. Issue • By delegating the power to promulgate sentencing guidelines for every federal criminal offense to the Sentencing Commission, did Congress grant excessive legislative discretion in violation of the nondelegation doctrine? Held • No. • The Act included sufficient guidelines for the Commission to follow. Congress directed the Commission to consider a list of seven factors in its formation of offense categories: the grade of the offense; aggravating and mitigating circumstances of the crime; the nature and degree of the harm caused by the crime; the community view of the gravity of the offense; the public concern generated by the crime; the deterrent effect that a sentence might have; and the current incidence of the offense. Dissent. While called "guidelines," they had the full force and effect of laws, prescribing criminal sentences. Because the scope of the delegation is largely uncontrollable by the courts, we should be particularly rigorous in preserving the Constitution's restrictions that deter excessive delegation. Concurrence. None. Discussion • The Act set forth more than an "intelligible principle" or minimal standards, and was a constitutional delegation of authority by Congress.

Williams v New York

Brief Fact Summary • Defendant appealed from a death sentence, when it was determined by evidence that had been considered of his criminal record, because he was not given the opportunity for cross-examination. Synopsis of Rule of Law • Whether a defendant's rights to due process have been violated when his criminal record is used against him as a means of enhancing his sentence. Facts • A jury in New York State court found appellant guilty of murder in the first degree, and recommended life imprisonment. • The trial judge imposed a sentence of death after considering additional information of the defendant's criminal record. Williams sought an appeal on the basis that he was not given the opportunity for cross-examination or rebuttal. Issue • Whether use of a defendant's criminal record in sentencing is tantamount to a violation of their right to due process. Held • Due process should not be considered a wall that is impenetrable by the evidentiary process that a judge must go through in determining sentencing. Affirmed. Dissent • Justice Murphy, for the dissent, argues that due process accords a defendant a fair trial at every stage and, by including evidence of a criminal record at sentencing, without affording the defendant a means of rebuttal, the defendant is necessarily being deprived of that right. Discussion • Due process is not a complete bar to the inclusion of evidence when it is to be considered by a Judge at the sentencing stage. • Judges have discretion and there is nothing unconstitutional about that

Gideon v. Wainwright

Brief Fact Summary • Gideon was charged with a felony in Florida state court. He appeared before the state Court, informing the Court he was indigent and requested that the Court appoint him an attorney. The Court declined to appoint Gideon an attorney, stating that under Florida law, the only time an indigent defendant is entitled to appointed counsel is when he is charged with a capital offense. Synopsis of Rule of Law • This case overruled Betts and held that the right of an indigent defendant to appointed counsel is a fundamental right, essential to a fair trial. Failure to provide an indigent defendant with an attorney is a violation of the Fourteenth Amendment of the United States Constitution ("Constitution"). Facts • Gideon was charged in a Florida state court with breaking and entering into a poolroom with the intent to commit a misdemeanor. Such an offense was a felony under Florida law. When Gideon appeared before the state Court he informed the court that he was indigent and requested the Court appoint him an attorney, asserting that "the United States Supreme Court says I am entitled to be represented by counsel." The se Court informed Gideon that under Florida law only indigent clients charged with capital offenses are entitled to court appointed counsel. • Gideon proceeded to a jury trial; made an opening statement, cross-examined the State's witnesses, called his own witnesses, declined to testify himself; and made a closing argument. • The jury returned a guilty verdict and Gideon was sentenced to serve five years in state prison. While serving his sentence, Gideon filed a petition for habeas corpus attacking his conviction and sentence on the ground that the trial court's refusal to appoint counsel denied his constitutional rights and rights guaranteed him under the Bill of Rights. The Florida State Supreme Court denied relief. Because the problem of a defendant's constitutional right to counsel in state court continued to be source of controversy since Betts v. Brady, the United States Supreme Court ("Supreme Court") granted certiorari to again review the issue. Issue • Whether the Sixth Amendment constitutional requirement that indigent defendants be appointed counsel is so fundamental and essential to a fair trial that it is made obligatory on the states by the Fourteenth Amendment of the Constitution? Held • The right to counsel is a fundamental right essential to a fair trial and due process of law. Concurrence • Justice Tom Clark ("J. Clark") concurred and recognized that the Sixth Amendment of the Constitution clearly required appointment of counsel in "all criminal prosecutions" and that the Fourteenth Amendment of the Constitution requires appointment of counsel in all prosecutions for capital crimes. The instant decision does no more than erase an illogical distinction. J. Clark further concludes that the Constitution makes no distinction between capital and noncapital cases. The Fourteenth Amendment requires due process of law for the deprivation of liberty just as equally as it does for deprival of life. Accordingly, there cannot be a constitutional distinction in the quality of the process based merely upon the sanction to be imposed. • Justice John Harlan ("J. Harlan"): Agrees that Betts v. Brady should be overruled, but argues that Betts recognized that there might be special circumstances in non capital cases requiring the appointment of counsel. In non-capital cases the special circumstances continued to exist, but have been substantially and steadily eroded, culminating in the instant decision. J. Harlan clarified his view that he does not believe that the Fourteenth Amendment of the Constitution incorporates the entire Sixth Amendment resulting in all federal law applies to all the States. J. Harlan still wants to preserve to the States their independence to make law and procedures consistent with the divergent problems and legitimate interests that the States face that are difference from each other and different from the Federal Government. Discussion • The Supreme Court, in reaching its conclusion that the right to counsel is a fundamental right imposed upon the states pursuant to the Fourteenth Amendment of the Constitution, engages in an analysis of its previous decisions holding that other provisions of the Bill of Rights are fundamental rights made obligatory on the States. • The Supreme Court accepts the Betts v. Brady assumption that a provision of the Bill of Rights which is fundamental and essential to a fair trial is made obligatory on the states by the Fourteenth Amendment of the Constitution. • The Supreme Court diverges from Betts in concluding that the right to assistance of counsel is a fundamental right. The Supreme Court found that the Betts Court's conclusion that assistance of counsel is not a fundamental right was an abrupt break from its own well-considered precedent. The Supreme Court further reasons that the right to be heard at trial would be, in many cases, of little avail without the assistance of counsel who is familiar with the rules of court, the rules of evidence and the general procedure of the court system. Without the assistance of counsel "though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence."

Griffin v. California

Brief Fact Summary • Petitioner appealed after being convicted when the trial judge gave a jury instruction that failure to testify should be construed against him. Synopsis of Rule of Law • The Fifth Amendment, as incorporated against the states in the Fourteenth Amendment, forbids comment on the accused's silence as evidence of guilt. Facts • Petitioner was convicted of First Degree Murder. • He chose to invoke his Fifth Amendment Privilege against self-incrimination and remained silent throughout the trial. • At the closing of trial, the court instructed the jury that it may infer that the defendant's silence was a probable indication of guilt. • The death penalty was imposed, and it was upheld by the California Supreme Court. • Under a writ of certiorari, the United States' Supreme Court decided to take the case at hand. Issue • Whether a jury instruction on the accused's silence is reversible error. Held • Reversed • Writing for the court, Justice Douglas notes that a jury instruction as to the accused's silence which instructs the jury to infer that silence was a probable indication of guilt was in violation of the Fifth Amendment rights of the defendant. • To break this down further, the holding indicates that an inference as to one's silence nullifies the reason for taking the silence to begin with. • Not testifying deemed to be a neutral fact • Dissent • Justice Stewart, for the dissent, notes that an instruction to the jury does not compel the defendant to testify against himself and, therefore, cannot be considered in violation of one's Fifth Amendment rights. Discussion • While this opinion can come across as complex, it simply stands for the assertion that one cannot be compelled to incriminate themselves, either by being forced to testify, or by having their own silence construed against them. • Improper for a judge or prosecutor to comment on the inference of whether to testify or not • Close enough to infringing 5th Amendment (compulsion to testify)

Barker v. Wingo

Brief Fact Summary • Petitioner brought this action to have his conviction overturned when, after sixteen (16) continuances, over a five-year period, he was finally tried and convicted for murder. Synopsis of Rule of Law • While there is a right to a speed trial, it is incumbent upon a defendant to assert that his right has been compromised should he not get one. Facts • In July of 1958, an elderly couple was beaten to death by intruders. One of the Suspects, Willie Barker. They were indicted on September 15th of that same year, counsel was appointed and the Commonweath decided to try Manning first to obtain a conviction before trying Barker. Manning was tried six times, the first four of which were fraught with mistakes and resulted in new trials. In February of 1963, after Manning was found guilty of the both murders, the Commonwealth moved to have Barker's trial scheduled. It was then continued twice more. At the commencement of the trial, Barker moved to have the case dismissed for lack of prosecution o the grounds that his right to a speedy trial had been violated. The Motion was denied and he was convicted and given a life sentence. Barker appealed and ultimately came to the Supreme Court. Issue • Whether a defendant must invoke the right to a speedy trial. Held • In its opinion, the Court used a four-factor balancing test to determine if the right to a speedy trial had been denied: *(1) The Length of the Delay: the court concedes that five years a great time for delay* *(2) The governmental reasons for delay: to determine to delay in order to get a better witness against the defense is not a good reason; however, to do so because of witness availability is* *(3) The defendant's responsibility to assert his rights* *(4) Prejudice to the defendant* • Heavily favors the government • Some dela • In the case at hand, the court found that there had been little prejudice to the defendant, because he had failed to assert his right or object to the delays until they had already occurred. Also, the court felt that Barker was gambling on the outcome of Manning's trial, which is why he waited for the delays. Thus, the court held that Barker was not prejudiced by the delay. Discussion. • When a defendant wants to invoke the right to a speedy trial, he or she must actively do so.

Williams v. Florida

Brief Fact Summary • Petitioner, Williams, appealed from an action denying him relief from a Florida statute which required he divulge information regarding his alibi prior to trial, on the grounds that it was testimony in violation of his Fifth Amendment rights. Synopsis of Rule of Law • Information requested in pretrial discovery is not considered testimony under the Fifth Amendment. Facts • Prior to being tried for robbery, Petitioner filed a Motion for Protective Order, seeking to be excused from 1.200 of the Florida Rules of Criminal Procedure, which required him to give up his alibi to prosecutors prior to trial. Petitioner felt this rule to be in violation to his Fifth Amendment right against self-incrimination because he was being forced to give evidence to the prosecution prior to trial and giving them an opportunity to determine whether his story was accurate. Thus he was being made to testify by way of the divulged information. Petitioner's Motion was denied and he went forth with trial. Petitioner went on to appeal. Issue • Whether a defendant can refuse to participate in pre-trial discovery, construing it as testimony under the Fifth Amendment's prohibition against self-incrimination. Held • Pre-Trial discovery is not testimony in the sense of the Fifth Amendment, and a defendant must participate if he intends to use evidence that is to be discovered at trial. Dissent • Justice Black, for the dissent, argues that by requiring a defendant to plead "alibi" before the trial of a case forces him to give the prosecution an unfair advantage. Concurrence • Justice Burger concurs, noting that an alibi discovery rule could allow the prosecution to dispense with a case before trial, should the alibi be credible enough. Discussion • Pre-trial discovery, while considered as testimony in the context of a deposition, is not testimonial insofar as divulging required information.

Stack v. Boyle

Brief Fact Summary • Petitioners members of the Communist Party were charged with conspiring to teach overthrowing the government, and were unsuccessful in a motion to reduce bail. Synopsis of Rule of Law • Bail set an amount higher than that which would be reasonably calculated to assure the presence of the accused individuals at trial is excessive under the Eighth Amendment. Facts • The District Court had set bail at the fixed amount of $50,000 for each of the petitioners, members of the Communist Party charged with conspiring to advocate or teach the overthrow of the government by force. This was an amount greater than that used with certain serious crimes. In objecting to the petitioners' motions to reduce bail under the Eighth Amendment, the government only showed evidence that other people convicted on similar charges had forfeited bail. When the petitioners' motions were denied, they filed for habeas corpus and were denied by the Ninth Circuit. They then filed for a writ of certiorari and were successful. Issue • Is a court setting bail for multiple defendants at a higher amount than that usually fixed for a crime and not applying the traditional standards of fixing bail to each one a violation of the Eighth Amendment? Held • Yes. Vacate the judgment of the lower court denying habeas corpus. • If a court is setting bail unusually high for multiple defendants, they need to have evidence come in regarding the situations of each defendant for the Eighth Amendment protection against cruel and inhuman punishment to not be affronted. That was not done here, so the setting of bail was constitutionally invalid and must be rectified. It clearly was not reasonably calculated to fulfill the purpose of assuring the presence of the defendant. • A smaller matter here was the determination that the proper procedural remedy in this situation was a motion to reduce bail not habeas corpus. Concurrence • Justice Robert H. Jackson wrote that he agreed with the substance of the court's decision and merely wanted to elaborate on procedural issues. Namely, that grand juries should not set bail, and that the Supreme Court should only consider cases where the reasonableness of bail is at issue in the rare situation where the problems they present are typical.

Apprendi v. New Jersey

Brief Fact Summary • Racially-motivated crime brought a sentence well above what he could have received. Synopsis of Rule of Law • "[I]t is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed. • It is equally clear that such facts must be established by proof beyond a reasonable doubt." Facts • Apprendi pleaded guilty to a shooting. • Evidence suggested that the crime was racially motivated. He was given an enhanced sentence under New Jersey hate crime law that was well above the sentence he could have received for the crime he pled to. Issue • "[W]hether the Due Process Clause of the Fourteenth Amendment requires that a factual determination authorizing an increase in the maximum prison sentence for an offense from 10 to 20 years be made by a jury on the basis of proof beyond a reasonable doubt. Held • Yes. • The Supreme Court recognized that "at stake in this case are constitutional protections of surpassing importance: the proscription of any deprivation of liberty without 'due process of law,'" and the guarantee that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury." • The Court further discussed the historic "link between verdict and penalty" and the inherent predictability the defendant was protected with. The Court required the application of the "reasonable doubt" standard to sentencing so as to limit error. • Held violates due process • Any factor raising standard of maximum • Big issue because Federal Guidelines were unconstitutional because increasing sentences without being proven in front of a jury • However, made Guidelines advisory in Booker and therefore judges could allow discretion Dissent. • The dissenting justices found that the Court had "embrace[d] a bright-line rule limiting the power of Congress and state legislatures to define criminal offenses and the sentences that follow from convictions thereunder," and so breaking from tradition. • J. Breyer, joined by the Chief Justice, argued that the Court had built its holding on "a procedural ideal-that of juries, not judges, determining the existence of those facts upon which increased punishment turns." Concurrence • Justice Scalia concurred, responding to Justice Breyer's dissent, taking issue with the evident desire to leave sentencing to judges. • Justice Thomas, joined J. Scalia, wanted a broader rule Discussion • "The 'reasonable doubt' requirement 'has a vital role in our criminal procedure for cogent reasons.' • Prosecution subjects the criminal defendant both to 'possibility that he may lose his liberty upon conviction and . . . the certainty that he would be stigmatized by the conviction.'"

United States v. Salerno

Brief Fact Summary • Respondent, Salerno, in connection with his ties to la cosa nostra, was arrested on charges of various RICO violations. This action arose when he challenged the fact that he was detained without bail. Synopsis of Rule of Law • Detention, which is regulatory, in order to keep a criminal from flight, is not impermissible pre-trial punishment. Facts • Anthony "Fat Tony" Salerno was indicted on several violations of the Racketeering, Influence and Corrupt Organizations Act (RICO), along with mail and wire fraud, extortion and various criminal gambling violations. After it was determined that he was the boss of la cosa nostra crime family, the government established that no condition or combination of conditions would ensure the safety of any person or the community and, under the provisions of the Bail Reform Act of 1984, asked that he be detained until trial. At the trial level, this request was granted; however, the Second Circuit Court of Appeals found that the authorization of pretrial detention on the ground of possible future dangerousness to be an unconstitutional deprivation of liberty. The government appealed. Issue • Whether pre-trial detention of a potentially dangerous criminal is punitive and therefore and unconstitutional deprivation of liberty without due process of law. Held • In an opinion, written by Chief Justice Rehnquist, the Supreme Court found that such a detention is regulatory and, when there are "sufficiently compelling governmental interests" the detention of dangerous persons can be justified because of the threat posed to society by their release. Dissent • Justice Marshall wrote the dissent, maintaining that by upholding the validity of the Bail Reform Act, the Court was opening the door to further detentions and, as long as a criminal defendant is presumed innocent until proven guilty, they should be not be deprived of their freedoms without due process. Thus, this dissent argued that the Act was unconstitutional. Discussion • The Bail Reform Act is a sticky area when considering constitutionality of pre-trial detainers. In this case, the defendant was later proven to be the boss of a large crime organization; however, to detain him on the possibility of future danger to society does arguably remove the presumption of innocent

Wainwright v. Sykes

Brief Fact Summary • Sykes was convicted of murder for shooting and killing Willie Gilbert ("Mr. Gilbert") in Florida. He made incriminating statements to police, which were admitted during his trial. Sykes did not object to the admission of the statements. Synopsis of Rule of Law • 28 U.S.C. Section:2254(a) provides that the federal courts shall entertain an application for a writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a state court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." Facts • Sykes was convicted of third-degree murder after a jury trial in the Circuit Court of DeSoto County, Florida. On the evening of January 8, 1972, Sykes told his wife to call police because he had just shot Mr. Gilbert. When police arrived at Sykes' trailer home, police found Mr. Gilbert dead of a shotgun wound. Shortly after their arrival, Sykes approached police and volunteered that he had shot Mr. Gilbert. Sykes' wife confirmed his story. Sykes was arrested and taken to the police station. Once there, he was read his Miranda rights and declined to have an attorney. He then admitted to shooting Mr. Gilbert from the front porch of his trailer home. This evidence was admitted at trial through the testimony of the two officers who heard it. • At no time during the trial was the admissibility of any of Sykes' statements challenged by his counsel on the ground that Sykes had not understood the Miranda warnings. The trial judge did not question their admissibility on his own motion or hold a fact-finding hearing on the issue. Sykes appealed his conviction but did not challenge the admissibility of the inculpatory statements. He later filed in the trial court a motion to vacate the conviction and a petition for habeas corpus in the State District Court of Appeals and Supreme Court, which for the first time challenged the statements made to the police on grounds of involuntariness. • Wainwright, on behalf of Florida, challenged the Fifth Circuit decision to order a hearing in state court on the merit's of Sykes' contention. The United States Supreme Court ("Supreme Court") granted certiorari to consider the availability of federal habeas corpus to review a state convict's claim that testimony was admitted at his trail in violation of his rights under Miranda v. Arizona. The Florida courts refused to consider the issue because of noncompliance with a state contemporaneous-objection rule. • FL required a contemporaneous objection • Was going to be convicted anyway Issue • Can Sykes' petition be brought under 28 U.S.C. Section:2254(a), which provides that the federal courts shall entertain an application for a writ of habeas corpus "on behalf of a person in custody pursuant to the judgment of a state court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States"? Held • Sykes' failure to make a timely objection under the Florida contemporaneous-objection rule to the admission of his inculpatory statements, absent a showing of cause for the noncompliance and some showing of actual prejudice, bars federal habeas corpus review of his Miranda claim. • Only way to forgive is cause and prejudice test for failure to object or preserve an issue o Must show good reason to not add it • Francis Test • Discussion • The Court noted that the Florida law is clear that motions to suppress evidence be raised before trial. Further, the Supreme Court asserted that a state contemporaneous-objection rule should be given respect in order to contribute toward the finality of criminal litigation.

Blakely v. Washington

Brief Fact Summary • The Petitioner, Ralph Howard Blakely, Jr. (Petitioner), a criminal defendant that pleaded guilty to a crime, alleges that he has a Sixth Amendment constitutional right to a trial by jury before the judge can increase his penalty for a crime beyond the prescribed statutory maximum. Synopsis of Rule of Law • Criminal defendants have a Sixth Amendment constitutional right to have a jury, prior to sentencing, determine all punishment-increasing facts about the way in which he carried out that crime, before the judge can increase his penalty for a crime beyond the prescribed statutory maximum. Facts • The Petitioner pleaded guilty to second-degree kidnapping involving domestic violence and use of a firearm. In the state where Petitioner was before the court, second-degree kidnapping is classified as a crime that carries a maximum sentence of ten years. A state law, however, limits the range of sentences that a judge may impose for this crime; the law specifies a "standard range" of 49 to 53 months for second-degree kidnapping. If a judge finds "substantial and compelling reasons justifying an exceptional sentence," the judge may impose a sentence above that standard range. The facts admitted in Petitioner's plea, standing alone, supported a maximum sentence of 53 months. At sentencing, the judge, upon learning of the facts of the kidnapping, imposed an "exceptional" sentence of 90 months onto the Petitioner. The judge justified the sentence on the ground that the Petitioner acted with "deliberate cruelty," a statutorily enumerated ground for departure from the permitted maximum sentence in domestic-violence cases. The Petitioner objected, and following a 3-day bench trial held by the judge, the judge adhered to his initial determination. The Petitioner argued that the sentencing procedure deprived him of his Sixth Amendment constitutional right to have a jury determine beyond a reasonable doubt all facts legally essential to his sentence. Issue • Whether a criminal defendant's Sixth Amendment constitutional right to trial by jury is violated when during sentencing, a judge rather than a jury decides whether there are reasons justifying a sentence beyond the statutory maximum? Held • Yes. • The Supreme Court of the United States (Supreme Court) held that the judge's imposition of the 90-month sentence violated the Petitioner's right to a jury trial under the Sixth Amendment. The judge could not have imposed the 90-month sentence solely on the basis of the facts admitted in the guilty plea. The right to a jury trial is a fundamental reservation to the people of control over the judiciary in the nation's constitutional structure which ensures that a judge's authority to sentence derives wholly from a jury's verdict. Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum has to be submitted to a jury and proved beyond a reasonable doubt. The Sixth Amendment is not a limitation on judicial power, but a reservation of jury power. It limits judicial power only to the extent that the claimed judicial power infringes on the province of the jury. • Applies to Apprendi to states • Judge went way above and therefore violated Apprendi and Jones • Discussion • During sentencing, if additional facts of a crime are to be determined, the Sixth Amendment requires that a jury rather than a judge determine those facts. Only then can a judge prescribe a sentence that is above the statutorily authorized maximum.

North Carolina v. Pearce

Brief Fact Summary • The defendants, Clifton Pearce ("Mr. Pearce") and William Rice ("Mr. Rice") (collectively referred to as the "defendants"), successfully overturned initial convictions only to be reconvicted with longer sentences without credit for time served. Synopsis of Rule of Law • Credit for time served must be applied under the double jeopardy provision of the United States Constitution ("Constitution"), and due process prohibits the imposition of a harsher sentence on a retrial. Facts • Two cases were consolidated for this decision. • Mr. Pearce was convicted of assault with intent to rape and given a prison term of 12-15 years. He successfully overturned the decision, but on retrial he was convicted and sentenced to 15 years less the seven years served. • Mr. Rice was convicted of four counts of second degree burglary, and he received a ten-year prison term. He also had three counts set aside, only to be reconvicted. He received a 25-year term from the retrial. Issue. • Whether the double jeopardy provision of the United States Constitution ("Constitution") mandates the judge imposing the second sentence to give credit for time served? • Whether a judge can impose a more severe sentence upon reconviction? Held. • The double jeopardy provision of the Constitution does mandate that credit for time served be applied to a reconviction sentence. • Due process dictates that a judge cannot impose a more severe sentence upon reconviction. The fact that a defendant was successful in overturning the first conviction cannot be a motivating factor for a judge to impose a harsher sentence. Also, the defendants may be apprehensive in appealing a decision if they fear retaliation from a judge. Dissent • Justice Hugo Black ("J. Black") agrees with the majority regarding the double jeopardy application, and he agrees that longer sentences imposed by a vindictive judge should not be allowed. But he thought that in regards to Mr. Pearce there was no evidence of bad intentions by the sentencing judge and therefore believed that due process was not applicable. Concurrence • Justice Byron White ("J. White") noted that one exception to the majority's ruling would be to allow the imposition of a harsher sentence if new evidence was produced prior to the retrial that would call for a harsher sentence. Discussion • The double jeopardy provision and the Equal Protection Clause of the Constitution would not apply to longer sentencing, but a defendant is protected under due process.

Teague v. Lane

Brief Fact Summary • The petitioner, Teague (the "petitioner") was convicted in an Illinois state court of attempted murder and other offenses. • The prosecutor used all ten of his peremptory challenges to exclude blacks from the jury. • The petitioner twice unsuccessfully moved for a mistrial arguing that he was entitled to a jury of his peers. • Batson had not come down yet and his case was dead (appeals exhausted) • Synopsis of Rule of Law • An individual may not seek to enforce a new rule of law in federal habeas corpus proceedings if the new rule was announced after the petitioner's conviction became final, or if the petitioner is seeking to establish a wholly new rule or to apply a settled precedent in a novel way that would result in the creation of a new rule. • Asserts new rule so argue new rule in federal court through habeas • Facts • The petitioner, a black man, was convicted in an Illinois state court for three counts of attempted murder, two counts of armed robbery, and one count of aggravated battery by an all white jury. • During jury selection, the prosecutor used all ten of his peremptory challenges to exclude blacks. The petitioner's attorney used one of his ten challenges to exclude a black woman married to a police officer. The petitioner's attorney moved for a mistrial after six blacks were struck, but the trial court denied the motion. • Teague again moved for a mistrial after an additional four blacks were struck. The prosecutor defended the challenges by stating that he was trying to achieve a balance of men and women on the jury. The trial court again denied the motion. • The petitioner appealed to the Illinois Appellate Court which rejected his claim that the challenges denied him the right to be tried by a jury representative of the community. • The petitioner then filed a petition for writ of habeas corpus in United States District Court ("District Court") again arguing the fair cross section claim, and arguing that under Swain v. Alabama, a prosecutor could be questioned about his use of peremptory challenges once he volunteered an explanation. • The District Court denied the Petitioner's petition, but a panel of the Court of Appeals agreed that the fair cross section requirement applied to a petit jury, and held that there was a prima facie case of discrimination. • The Court of Appeals voted to rehear the case, but postponed it until a decision in Batson v. Kentucky, which overruled a portion of Swain. • After Batson was decided, the Court of Appeals held that the petitioner could not benefit from the rule retroactively, that his Swain claim was procedurally barred, and the fair cross section claim was limited to jury venire. Issue • Is the petitioner prevented from benefiting from the rule in Batson since his conviction became final before Batson was decided? • Is the petitioner procedurally barred from raising the Equal Protection Clause claim under Swain since he did not raise the claim at trial or on direct appeal? Held • Justice Sandra Day O'Connor ("J. O'Connor") delivered the opinion of the Court in regards to Parts I, II, and III. The Supreme Court of the United States ("Supreme Court") held that the Petitioner was procedurally barred from benefiting from the Batson rule since his conviction was final before Batson was decided. • Also, the Supreme Court held that the petitioner is barred from raising a claim that he has established a violation of the Equal Protection Clause under Swain because he did not raise the Swain claim at trial or on direct appeal. • Court argued that this was not a watershed rule meaning not as fundamental as larger issues such as right counsel • Retroactivity would be permissible in big exceptions • Harlan's Test for New Rules o (1) Watershed Rule o (2) Implicit in the concept of ordered Liberty o (3) o Discussion • The Supreme Court decided that an individual may not seek to enforce a new rule of law in federal habeas corpus proceedings if the new rule was announced after the individual's conviction became final, or if the individual is seeking to establish a wholly new rule or to apply a settled precedent in a novel way that would result in the creation of a new rule. • The Supreme Court identified two exceptions: o (1) rules prohibiting punishment for "private, primary individual conduct beyond the power of the criminal law-making authority to proscribe"; and o (2) rules that are "implicit in the concept of ordered liberty"

Duncan v. Louisiana

Brief Fact Summary. The Appellant, Gary Duncan (Appellant), was convicted of simple battery, a misdemeanor, in a Louisiana district court. Under Louisiana law, jury trials are not granted in misdemeanor cases. The Appellant claimed the state's denial of trial by jury violated the United States Constitution (Constitution). Synopsis of Rule of Law. The Fourteenth Amendment of the Constitution guarantees a right of trial by jury in all criminal cases. Facts. In 1966, the Appellant was driving his car when he saw his two younger black cousins on the side of the road with four white boys. The Appellant's cousins had recently transferred to another school with reported racial problems. The Appellant stopped the car and got out to approach the six boys. A discussion ensued and the Appellant and his cousins decided to get back into the car and leave. Prior to getting into the car, a white boy testified that the Appellant slapped his elbow. The Appellant stated that he merely touched the boy on the elbow. The Appellant was charged with simple battery and requested a trial by jury. His request was denied. The trial judge concluded the elements of simple battery were proven by the state and found the Appellant guilty of the crime. The Appellant sought review in the Louisiana Supreme Court, claiming the state's denial of trial by jury was a violation of the Constitution. The Supreme Court of Louisiana denied review. Issue. Does a state law granting a jury trial only in cases where the penalty is capital punishment or imprisonment at hard labor violate the Constitution? Held. Yes. The Constitution was violated when Appellant's demand for jury trial was refused. Justice Byron White (J. White) delivered the opinion of the Supreme Court of the United States (Supreme Court). Trial by jury in criminal cases is fundamental to the American scheme of justice because it works to prevent governmental oppression. Right of trial by jury in serious criminal cases works as a defense against arbitrary law enforcement and qualifies for protection under the Due Process clause of the Fourteenth Amendment of the constitution. There has been debate over whether laymen can determine the facts in civil and criminal proceedings. Critics express a concern that juries are incapable of properly understanding evidence or determining issues of fact. However, juries do understand the evidence and come to sound conclusions in most cases presented to them. We are not suggesting that every criminal trial held before a judge is unfair or that a defendant may never be treated fairly by a judge. The purpose of a right to jury trial is to reduce the possibility of judicial or prosecutorial unfairness. Dissent. Justice John M. Harlan (J. Harlan) and Justice Potter Stewart (J. Stewart) dissenting. There are a wide range of opinions concerning the desirability of trial by jury. Among the considerations pertaining to local conditions are the size of the criminal caseload, the difficulty in obtaining jurors and other circumstances bearing on the fairness of the trial. Each state should have the right to experiment with criminal procedure in the court system. The Supreme Court, other courts and the political process exist to correct any experiments in criminal procedure that prove fundamentally unfair to individuals. Discussion. Trial by jury is an integral part of the criminal system. It is necessary to protect against unfounded criminal charges and against judges who are too responsive to higher authority. Trial by jury is also a safeguard against overzealous prosecutors.

Giles v. California

CASE SYNOPSIS Petitioner was convicted of first-degree murder after the victim's prior out-of-court statements were admitted under Cal. Evid. Code § 1370 (2008). The California Supreme Court affirmed the conviction on the ground that petitioner had forfeited his right to confront the victim because he had committed the murder for which he was on trial and because his intentional criminal act made the victim unavailable to testify. Certiorari was granted. ISSUE The issue was whether a defendant forfeited his Sixth Amendment right to confront a witness against him when a judge determined that a wrongful act by the defendant made the witness unavailable to testify at trial. DISCUSSION The theory of forfeiture by wrongdoing accepted by the state court was not a founding-era exception to the confrontation right because the manner in which the common law forfeiture rule was applied made plain that unconfronted testimony would not be admitted without a showing that the defendant intended to prevent a witness from testifying. There was no basis for the State's argument that a defendant who committed some act of wrongdoing that rendered a witness unavailable forfeited his right to object to the witness's testimony on confrontation grounds, but not on hearsay grounds. Moreover, the State's proposed exception was not supported by case law subsequent to founding as the wrongful procurement rule did not depend on confrontation. CONCLUSION The judgment was vacated. The case was remanded for further proceedings. 6-3 decision; 2 opinions; 3 concurrences; 1 dissent.

Downum v. United States

CASE SYNOPSIS • Defendant appealed, on double jeopardy grounds, a judgment of the United States Court of Appeals for the Fifth Circuit, which affirmed defendant's conviction for stealing, forgery, and passing Government checks, and for conspiracy. CASE FACTS • After defendant was indicted, a jury was impaneled and sworn, at which time the government announced that it was not ready to proceed because one of its witnesses was not available. • The trial court released the jury and rescheduled the trial. • Defendant objected on double jeopardy grounds. The trial court overruled his objection, and defendant was convicted. • The appellate court affirmed, holding that the release of the first jury after being sworn but before hearing any evidence did not constitute a point at which jeopardy attached. DISCUSSION • The Court granted certiorari and reversed the appellate court's ruling. • Where the basis for releasing the first jury was because a prosecution witness had not been served with a summons and no other arrangements had been made to assure his presence, defendant was improperly exposed to double jeopardy. • When the district attorney impaneled the jury without first ascertaining whether or not his witnesses were present, he took a chance. • The situation presented was one where the district attorney entered upon the trial of the case without sufficient evidence to convict, and that did not take the case out of the rule with reference to former jeopardy. • *Jeopardy attaches the MOMENT the jury is sworn* • CONCLUSION • The Court reversed the appellate court's judgment.

Bartkus v. Illinois

CASE SYNOPSIS • Defendant filed a petition for rehearing of a judgment by an equally divided Court, which had affirmed defendant's conviction by the Illinois Supreme Court. Certiorari had been granted because the petition raised a substantial question concerning the application of the Fourteenth Amendment. CASE FACTS • Defendant was acquitted of robbery, in violation of 18 U.S.C.S. § 2113, in federal court. • Defendant was then convicted of robbery, in violation of Ill. Rev. Stat. ch. 38, para. 501 (1951), in state court on facts that were substantially identical to those contained in the prior federal indictment. • The conviction was affirmed by the state's supreme court and defendant appealed. DISCUSSION • The Court held that since the second prosecution was by the state, and not the federal government, defendant's claim of unconstitutionality rested upon the Due Process Clause of the Fourteenth Amendment. • The Court held that the task of determining if the federal and state statutes were so much alike that a prosecution under the former barred a prosecution under the latter depended upon a judgment of the gravamen of the state statute and an understanding of the scope of the bar that was historically granted in the state to prevent successive state prosecutions. • The Court held that the Fourteenth Amendment was not to be used to interfere with a state's efforts to develop a rational body of criminal law and that the record did not show that the state prosecution was a sham or cover for the federal prosecution. CONCLUSION • The Court affirmed the conviction of defendant. • Usually DOJ policy that won't retry state trial unless sham or major issues not looked at

Blockburger v. United States

CASE SYNOPSIS • Defendant sought certiorari review of a judgment from the United States Circuit Court of Appeals for the Seventh Circuit, which affirmed defendant's conviction and sentence under § 1 and § 2 of the Harrison Narcotic Act, 26 U.S.C.S. §§ 692, 696. CASE FACTS • Defendant was charged and convicted of selling drugs without their original packaging and without a written order, which were violations of 26 U.S.C.S. §§ 692 and 696. • Defendant contended that he had committed only one offense and that only one penalty could be imposed. Both of defendant's convictions and his consecutive sentencing were upheld on appeal. Defendant sought further judicial review from the United States Supreme Court, which granted his petition for certiorari. DISCUSSION • The Court reviewed the record and affirmed the consecutive sentences that were imposed, concluding that defendant had committed two separate offenses because each provision of the Harrison Narcotic Act required proof of an additional fact that the other did not. • Selling the proscribed drugs without their original packaging was not the same crime as selling them without a written order. • Where two provisions of a statute contained different elements, prosecution and punishment under both of them did not result in double jeopardy. CONCLUSION • The Court affirmed the imposition of consecutive sentences because defendant had committed two violations by selling the drugs without a written order and not in the original stamped package.

Brown v. Ohio

CASE SYNOPSIS • Defendant sought review of the decision of the Court of Appeals of Ohio affirming the decision of the lower court that determined that the government's indictments for stealing an automobile and operating a vehicle without the owner's consent (joyriding) were not barred by the double jeopardy clause, U.S. Constitutional Amendment V, when defendant had already pleaded guilty in another county for joyriding and the two actions arose out of the same incident. CASE FACTS • Defendant stole a car from an East Cleveland, Ohio parking lot and was caught nine days later in Wickliffe, Ohio. • Defendant pleaded guilty to the crime of operating a vehicle without the owner's consent (joyriding) after the charges were brought by Wickliffe officials. • Defendant was then returned to East Cleveland where he was charged with stealing an automobile (auto theft) from the same incident. • The trial court overruled defendant's objections to the charges on the basis of double jeopardy, U.S. Constitutional Amendment V, and the appellate court affirmed. DISCUSSION • The court reversed the decision of the appellate court. • The court held that auto theft and joyriding were a greater and lesser included offense under Ohio law, and constituted the same offense for purposes of the double jeopardy clause, U.S. Constitutional Amendment V. • The court held that the violations arose out of the same offense because the required proof of the same set of facts, and the successive prosecution was prohibited. • The court held that the prosecution could not allege two separate offenses under applicable Ohio law simply because the auto theft and joyriding took place over a nine day period. CONCLUSION • The court reversed the decision of the appellate court that determined that a subsequent prosecution of defendant for stealing an automobile after he had pleaded guilty to operating a vehicle without the owner's consent was not barred by double jeopardy. • The court held that double jeopardy applied when the charges arose out of the same incident, and there was no additional proof required in the auto theft charge.

Missouri v. Hunter

CASE SYNOPSIS • Defendant was convicted of robbery in the first degree and armed criminal action. • The Missouri Court of Appeals reversed defendant's conviction and sentence for armed criminal action, finding that his sentence for both that crime and robbery in the first degree violated the Double Jeopardy Clause of the Fifth Amendment. The State sought certiorari review. CASE FACTS • Defendant successfully appealed his conviction and sentence for armed criminal action in the state courts, on the grounds that his sentence for both that crime and for robbery in the first degree violated the Double Jeopardy Clause of the Fifth Amendment. DISCUSSION • The United States Supreme Court granted certiorari review and held that when the legislature specifically authorized cumulative punishment under two statutes, regardless of whether those two statutes proscribed the same conduct, a court's task of statutory construction was at an end and the prosecutor could seek and the trial court or jury could impose cumulative punishment under such statutes in a single trial. • The Court was not bound by the state supreme court's legal conclusion that the two statutes which defined the same crime violated the Double Jeopardy Clause. CONCLUSION • The Court vacated the state court judgment, which set aside defendant's conviction and sentence for armed criminal action, and remanded the case for further proceedings.

McMillian v. Pennsylvania

CASE SYNOPSIS • Defendants were convicted of felonies under 42 Pa. Cons. Stat. § 9712 and were subject to mandatory minimum sentences when an accused was found by a preponderance of the evidence to have visibly possessed a firearm during the offense. • Defendants appealed, challenging the statute under the Sixth Amendment and the Due Process Clause of the Fourteenth Amendment. The Supreme Court of Pennsylvania upheld the statute, and the court granted certiorari. CASE FACTS • Defendants were convicted of felonies which, under 42 Pa. Cons. Stat. § 9712, carried mandatory minimum sentences of five years' imprisonment if the sentencing judge found by a preponderance of the evidence that the accused visibly possessed a firearm during commission of the offense. • The trial judge in each of four consolidated cases held that § 9712 violated the Sixth Amendment and the Due Process Clause of the Fourteenth Amendment. DISCUSSION • The court granted certiorari and affirmed holding that visible possession of a firearm could be treated as a sentencing consideration and not as an element of any offense. • It reasoned that a state need not prove beyond a reasonable doubt every fact which it is willing to recognize as an exculpatory or mitigating circumstance affecting the degree of culpability or the severity of punishment. • Because § 9712 came into existence only after defendants were convicted of an enumerated felony, visible possession was not an element of the offense and due process was satisfied by a preponderance of the evidence standard of proof. • Raising the bottom number does NOT raise a Constitutional issue but raising the TOP number DOES • Sentencing Factor v. Element of the Crime o Sentencing Factor • Judge's province • Doesn't require jury • Civil Standard o Element of a Crime • Jury • Proven beyond a reasonable doubt o Decision of which it will be is up to the legislative decision o CONCLUSION • The court affirmed the judgment of the Pennsylvania Supreme Court.

Smith v. Cain

CASE SYNOPSIS • Petitioner inmate sought post conviction relief regarding his first-degree murder conviction, alleging a Brady violation. The Orleans Parish Criminal District Court of Louisiana rejected the Brady claim, and the Louisiana Court of Appeal and Louisiana Supreme Court denied review. The United States Supreme Court granted certiorari. CASE FACTS • The inmate was charged with killing five people during an armed robbery. At trial, a witness identified the inmate as the first gunman to come through the door. No other witnesses and no physical evidence implicated the inmate in the crime. After being convicted, the inmate obtained a detective's notes, which contained statements by the witness that conflicted with his testimony identifying the inmate as a perpetrator. The inmate alleged that the prosecution's failure to disclose the detective's notes violated Brady. DISCUSSION • The Court determined that the witness's undisclosed statements alone sufficed to undermine confidence in the inmate's conviction because the undisclosed statements were plainly material to the determination of the inmate's guilt since the witness's testimony was the only evidence linking the inmate to the crime, and the witness's undisclosed statements directly contradicted the witness's testimony. CONCLUSION • The Court reversed the state trial court's judgment and remanded the case for further proceedings. 8-1 Decision; 1 Dissent.

Fong Foo v. United States

CASE SYNOPSIS • Petitioners challenged by certiorari a decision from the United States Court of Appeals for the First Circuit, which vacated a district court judgment acquitting them of conspiracy and concealing material facts in a matter within the jurisdiction of an agency of the United States, violations of 18 U.S.C.S. §§ 371 and 1001, and directed that the case be reassigned for trial. CASE FACTS • Petitioners were brought to trial before a jury for conspiracy and concealing material facts in a matter within the jurisdiction of a United States agency. • After seven days of testimony, the district judge directed the jury to return verdicts of acquittal as to all petitioners. • The Government filed a petition for a writ of mandamus praying that the judgment of acquittal be vacated and the case reassigned for trial. The appellate court granted the petition, finding that the district court was without power to direct the judgment of acquittal. DISCUSSION • The court granted certiorari and reversed. • The appellate court violated the Fifth Amendment protection against double jeopardy when it set aside the acquittal and directed that petitioners be tried again for the same offense. • Petitioners were tried under a valid indictment in a federal court that had jurisdiction over them and over the subject matter. • The trial terminated with the entry of a final judgment of acquittal as to each petitioner. • Even if the acquittal was based upon an egregiously erroneous foundation, the verdict was final and could not be reviewed without putting petitioners twice in jeopardy in violation of the Constitution. CONCLUSION • The court reversed, finding that the verdict of acquittal could not be reviewed by the appellate court.

Hoffman v. United States

CASE SYNOPSIS • The United States Supreme Court granted certiorari to review a decision of the United States Court of Appeals for the Third Circuit, which affirmed defendant's conviction for criminal contempt for the refusal to answer questions before a federal grand jury and rejected defendant's claim that he was entitled to the protection afforded by U.S. Constitutional amendment Vagainst testimonial self-incrimination. CASE FACTS • Defendant was convicted of criminal contempt for refusing to obey a federal court order requiring him to answer questions asked in a grand jury investigation. • The conviction was affirmed by the court of appeals, and the Court granted certiorari. • Racketeering investigation • Refused to ask about business • Issue was had to incriminate himself to show 5th amendment • The grand jury was investigating frauds upon the federal government, including violations of the customs, narcotics and internal revenue liquor laws, the White Slave Traffic Act, perjury, bribery, and other federal criminal laws, and conspiracy to commit all such offenses. Defendant refused to answer questions as to his occupation, as to when he had last seen another named individual, and the whereabouts of that individual, on the ground that his answers might tend to incriminate him of a federal offense. DISCUSSION • The Court reversed defendant's conviction, holding that, under all of the circumstances, defendant's concern that answering the questions might subject him to federal criminal liability was reasonable, and defendant was therefore entitled to the protection afforded by U.S. Constitutional Amendment V against testimonial self-incrimination and should not have been held in contempt for failing to answer. • Have to assume properly relying on his rights • Common sense • Decline to tell on grounds of self incrimination CONCLUSION • The Court reversed defendant's conviction, holding that, under all of the circumstances, defendant had a reasonable concern that answering the questions might subject him to federal criminal liability, and defendant was therefore entitled to the protection afforded by the Fifth Amendment against testimonial self-incrimination and should not have been held in contempt for failing to answer.

3 Kinds of Evidence

Crimen Falsi → Within the last 10 years is allowed to be brought in because of reliability of witness • Criminal Impersonation • Can bring it in • Perjury • Forgery • Certain fraud • Counterfeiting • Lying Stealth Crimes → Limited in impeachment • Not directly a lie, but from actions • Larceny, smuggling, robbery • Admissible subject to balancing Assaultive Crimes → Generally do NOT come in • Not admissible because does not o Allowed to bring in very similar, unique, and ritualistic can bring in for identity

Federal Sentencing Guidelines Example

Example: Robbery (Federal) • 20 base and has prior robbery (column II) o 37 - 46 • Bank → +2 • Firearms → +5 • Bodily Injury → +2 • Physical Restraint → +2 • Over $250K → +3 • 34 →168 - 120 Determinate o 14 to 17.5 years • Nowadays, can only downwardly depart if legit reason

Habeas Corpus

Habeas corpus is a writ that is used to bring a party who has been criminally convicted in state court into federal court. Usually, writs of habeas corpus are used to review the legality of the party's arrest, imprisonment, or detention.

Preliminary Hearings

If a ∆ is held in jail for more than 48 hours, the 4th Amendment requires a judicial finding of probable cause to believe that the ∆ committed the crime • Many states also require a preliminary hearing o Adversarial Hearings o Defense • Gets police reports, Rosario material, memos, etc • Cross examine police officers o Presented in front of judge

Patten Hearing

Illegal Search motion hearing

Competency

It is essential that the ∆ possesses the mental capacity to make the decision to plead guilty, i.e. that he is competent to plead guilty

Bill of Particulars

It is submitted by the prosecution to the defendant, at the defendant's demand, to provide the facts alleged in the complaint or the indictment that related to the commission of the crime. The defendant is given notice of the offenses with which he or she is charged so that a defense may be prepared and the possibility of surprise or Double Jeopardy avoided. As in civil procedure, a bill of particulars is not intended to serve as a discovery device.

Ohio v. Roberts

o Witness could not be found so used preliminary hearing testimony • Fell within Mattox rule • Not quite fair in reality • Preliminary hearing is right before arrest • Haven't done full investigation and capacity to do full cross-examination

RIGHT TO TRIAL BY IMPARTIAL JURY

Preemptory challenge is without explanation o Law prohibits the amount of them but varies • Challenge for cause o Can't be a jury because of conflicts • Can't speak English • Related to victim • Can't be fair • Most common • Unable to follow instructions o Unlimited • Function of the jury o Mistrust of judges and lawyers in England o Rigid and top down approach to cases in England and colonies o Safeguard against corrupt judges

Arizona v. Fulminate

Relevant Facts • Fulminante was suspected of having murdered his stepdaughter. He was ultimately arrested in New York for an unrelated crime and consequently incarcerated. • During his prison stint he befriended an individual named Anthony Sarivola, who was an inmate that was paid by the FBI to be an informant on other inmates for the duration of his prison sentence. • Fulminante first denied killing his stepdaughter during a conversation with Sarivola, but then admitted to the crime in order to curry favor (protection in prison). • Once released from prison, Fulminante confessed to his friend's wife. As a result, charges were filed against Fulminante and he was indicted for murder. Fulminante argued during the trial's guilt phase that his confessions could not be used against him because they were coerced. The Court ruled to include the confessions, which led to his conviction, and the imposition of the death penalty as his sentence. • When the matter was appealed, the Arizona Supreme Court ordered that Fulminante be granted a new trial in which the confessions would no longer be admissible. Issues: • Two main legal questions were presented. They included the following: o Whether the Arizona Supreme Court correctly applied the totality of circumstances test when it considered whether a suspect's confession to murder was coerced? o Whether the Arizona Supreme Court correctly applied the harmless error analysis when considering whether the suspect's coerced confession influenced the trial outcome? Holding: • The Supreme Court ruled that the Arizona Supreme Court had correctly applied both tests. Reasoning: • The Court reasoned that Fulminante had his rights violated because he had been coerced by his friend who was actually an FBI informant. Consequently, the Arizona Supreme Court's ruling for a new trial without the admission of the confessions was correct. • The Court found that "it was fear of physical violence, absent protection from his friend Sarivola, which motivated Fulminante to confess." • Because Fulminante was motivated by trying to protect his physical safety and even quite possibly his life, his confession was produced under duress. • Since the confessions were significant evidence in the trial, the most appropriate recourse for Fulminante was to order a new trial that did not include submission of his tainted confessions. • Juries don't have sophistication to not see a confession as a instant sign of guilt • SC Analysis of Harmless o Apply Chapman Test • Harmless beyond a reasonable doubt • Lynch pin to case

Jury Deliberation

Secrecy of Jury Deliberation o The veil of secrecy that protects the deliberative process makes inquiry into the basis of the acquittal next to impossible • Jury Verdict as a "Black Hole" o Law value the autonomy of jurors and juries • Polling the Jury o Fed. R. Crim. P. 31(d): If the poll reveals a lack of unanimity, the court may direct the jury to deliberate further or may declare a mistrial and discharge the jury. • Rule Against Impeaching the Verdict o If after the verdict is entered, a juror comes forward and announces that other jurors pressured him to vote for the verdict, nothing can be done. o Jury's verdict may not be impeached by the testimony of a juror concerning any influences on the jury's deliberation that emanated from within the jury room

Confrontation Clause

The Confrontation Clause of the Sixth Amendment to the United States Constitution provides that "in all criminal prosecutions, the accused shall enjoy the right...to be confronted with the witnesses against him." • In all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him o US Constitution Amendment VI • Confrontation Clause o So important because otherwise lose opportunity to confront o Some people won't necessarily take the oath seriously o Even making a sworn statement in open court allows more guarantee of truthfulness o Is cross-examination transformational and super important? • Showing whether they are unreliable not really explaining more or showing story o Most effective tool of winning criminal defense case is ability to effectively cross-examine • Not necessarily the truth, but more acquittals o More accurately a fairness issue and ability to even the odds a bit more

Excessive Bail Clause

The Excessive Bail Clause of the Eighth Amendment to the United States Constitution prohibits excessive bail set in pre-trial detention. The Clause was drafted in response to the perceived excessiveness of bail in England.

Exclusionary Rule

The exclusionary rule is a legal principle in the United States, under constitutional law, which holds that evidence collected or analyzed in violation of the defendant's constitutional rights is sometimes inadmissible for a criminal prosecution in a court of law.

Padilla v. Kentucky

United States Supreme Court decided that criminal defense attorneys must advise noncitizen clients about the deportation risks of a guilty plea. The case extended the Supreme Court's prior decisions on criminal defendants' Sixth Amendment right to counsel to immigration consequences. The duties of Counsel recognized in Padilla are broad. After Padilla, if the law is unambiguous, attorneys must advise their criminal clients that deportation will result from a conviction. Also, if the immigration consequences of a conviction are unclear or uncertain, attorneys must advise that deportation "may" result. Finally, attorneys must give their clients some advice about deportation: counsel cannot remain silent about immigration. After Padilla, there has been significant litigation in the lower courts about whether attorneys are required to advise their criminal clients about other consequences of convictions. Padilla argued that the bad advice he had been given was ineffective assistance and therefore his conviction breached the Sixth Amendment. Padilla won his case in the Kentucky Appellate Court, but the Commonwealth requested the Kentucky Supreme Court hear the case on discretionary review. That court applied a harsh version of the collateral consequences rule, reasoning that whether Padilla's attorney failed to advise him or affirmatively misadvised him before his plea made no difference.[4] The court held that even affirmative misadvice about deportation provided no grounds for relief under Strickland.[5][6] As the Supreme Court agreed to hear it,[7] the case posed two questions: (1) whether the mandatory deportation that results from a guilty plea to trafficking in marijuana is a "collateral consequence" and counsel is thereby relieved of an affirmative duty to advise his client about it in accordance with the guarantees of the Sixth Amendment; and, (2) assuming deportation is a "collateral consequence", whether counsel's gross misadvice about deportation constitutes a ground for setting aside a guilty plea that is induced by that advice. Ultimately, the Court re-framed the case in a way that made the collateral consequences doctrine irrelevant. Decision The Supreme Court reversed the Kentucky Supreme Court's decision. The Supreme Court held that criminal defense attorneys are duty-bound to inform clients of the risk of deportation under three circumstances. Firstly, if the law is unambiguous, attorneys must advise their criminal clients that deportation will result from a conviction. Secondly, if the immigration consequences of a conviction are unclear or uncertain, attorneys must advise that deportation may result. Thirdly, attorneys must give their clients some advice about deportation; counsel cannot remain silent about immigration consequences.[8]

For Cause Challenges

a request that a prospective juror be dismissed because there is a specific and forceful reason to believe the person cannot be fair, unbiased or capable of serving as a juror. Juror is statutorily unqualified • A juror must be excluded for cause in 2 circumstances o Statutorily unqualified to serve (i.e. not a citizen, cannot speak English, or has criminal charges pending against her) o Biased • Actual Biased • Demonstrated in Voire Dire • Implied Bias legally presumed • Witherspoon-Excludables o Somebody would automatically vote against the imposition of capital punishment without regard to any evidence • Lockhart o Pro death are more likely to convict • Court said too bad

Hammon v. Indiana

o Police interview victim after assault o Court held statements were testimonial because witness was calm. o There was no emergency in progress. o Amy told the officer things were fine. o There was no immediate threat. o The officer was NOT seeking to determine what is happening he WAS seeking to determine what happened. o Purpose was to nail down the truth about a past criminal event.

Jeopardy Bars***

o (1) Acquittal o (2) Conviction o (3) Mistrial Caused by Prosecutorial Misconduct

Jury Deliberation Outcomes

o (1) Conviction o (2) Acquittal o (3) Hung Jury

4 Propositions of Jury v. Judge Sentencing

o (1) Judges are less susceptible to prejudice than jurors o (2) Sentences imposed by judges are more uniform o (3) Judges are more lenient than juries o (4) Jury sentencing encourages compromise verdicts

3 Types of Jury Misconduct

o (1) Jury tampering by someone seeking purposefully to influence the outcome o (2) External influences that lack the purposeful nature of jury tampering o (3) Prejudging the case or reaching a verdict by some means other than considering the facts of the case

5 Categories of Decisions belong to the client

o 1) What pleas to enter, including whether to plead not guilty by reason of insanity o 2) Whether to accept a plea agreement o 3) Whether to waive jury trial o 4) Whether to testify in his or her own behalf o 5) Whether to appeal

Retroactivity

o 3 Prong Test Required in Examining Retroactivity • (1) The purpose of the exclusionary rule • (2) The reliance of the States on prior law • (3) The effect on the administration of justice of a retroactive application of the exclusionary rule • Anytime court comes down with new case need to apply retroactively • Riley v. CA (2014) o Police need PC/warrant to open up/exam cell phones • ∆ has arrested but not tried yet → Retroactive • ∆ on trial → Retroactive • ∆ convicted, pending appeal → Retroactive • ∆ convicted, appeals exhausted → Not retroactive • Only works prospective as long as case is still alive o Ex: Padilla violation • New Rules benefit retroactively anyone who still has a live case (including appeal) • Court requires all new rules to be fully retroactive to case not yet final when the rule is announced o Habeas case a more difficult • Can raise Habeas claim after appeals are exhausted • Issue of finality still exists o Ex: Ohio's battered woman's law

Davis v. Washington

o 911 calls are not testimonial in nature o Emergency The Confrontation Clause of the Sixth Amendment, as interpreted in Crawford v. Washington, does not apply to "non-testimonial" statements not intended to be preserved as evidence at trial. Although McCottry identified her attacker to the 911 operator, she provided the information intending to help the police resolve an "ongoing emergency," not to testify to a past crime. The Court reasoned that under the circumstances, McCottry was not acting as a "witness," and the 911 transcript was not "testimony." Therefore, the Sixth Amendment did not require her to appear at trial and be cross-examined.

Holland v. Illinois

o A prosecutor's use of peremptory strikes to exclude African-Americans from juries does NOT violate the 6th Amendment fair-cross-section right o "The 6th Amendment requirement of a fair cross section on the venire is a means of assuring, not a representative jury, but an impartial one."

Brady v. Maryland

o Announced a broad rule of constitutional criminal discovery: • The suppression by the prosecution of evidence favorable to an accused 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 o Prosecution • No good/bad faith • Failure to disclose • Tends to exculpate or diminish punishment o ∆ • Upon request • Failure to disclose with an inadequate request o Standard • "might have affected the outcome of the trial" upon request • Must create Procedural History Maryland prosecuted Brady and a companion, Boblit, for murder. Brady admitted being involved in the murder, but claimed Boblit had done the actual killing. The prosecution had withheld a written statement by Boblit confessing that he had committed the act of killing by himself. The Maryland Court of Appeals had affirmed the conviction and remanded the case for a retrial only on the question of punishment. The Court's Decision The Supreme Court held that withholding exculpatory evidence violates due process "where the evidence is material either to guilt or to punishment"; and the court determined that under Maryland state law the withheld evidence could not have exculpated the defendant but was material to the level of punishment he would be given. Hence the Maryland Court of Appeals' ruling was affirmed. A defendant's request for "Brady disclosure" refers to the holding of the Brady case, and the numerous state and federal cases that interpret its requirement that the prosecution disclose material exculpatory evidence to the defense. Exculpatory evidence is "material" if "there is a reasonable probability that his conviction or sentence would have been different had these materials been disclosed." Brady evidence includes statements of witnesses or physical evidence that conflicts with the prosecution's witnesses, and evidence that could allow the defense to impeach the credibility of a prosecution witness. Aftermath Police officers who have been dishonest are sometimes referred to as "Brady cops." Because of the Brady ruling, prosecutors are required to notify defendants and their attorneys whenever a law enforcement official involved in their case has a confirmed record of knowingly lying in an official capacity. Police officers fear that prosecutors and police supervisors will use access to their personnel files to abuse the Brady-cop designation, by labeling officers as Brady cops in order to punish them outside of formal disciplinary channels and those channels' attendant procedural protections. Brady has become not only a matter of defendants' due process trial rights, but also of police officers' due process employment rights. Officers and their unions have used litigation, legislation, and informal political pressure to push back on Brady's application to their personnel files. This conflict over Brady's application has split the prosecution team, pitting prosecutors against police officers, and police management against police labor.[5] Brady evidence also includes evidence material to credibility of a civilian witness, such as evidence of false statements by the witness or evidence that a witness was paid to act as an informant.

Federal Speedy Trial Act

o Basic Time Limits • 1) Indictment must be presented within 30 days of arrest or issuance of summons • 2) Trial must occur within 70 days from the indictment or appearance before a "judicial officer of the court in which such charge is pending" whichever last occurs o Act gives judges wide discretion to dismiss without prejudice if the government fails to provide a trial in time o Data shows defense and prosecutors find loopholes in this

United States v. Inadi

o Co-conspirators statements have an indicia of reliability o Admission against penal interest to hearsay o Co-conspriator hearsay statement against ∆ • Comes in against ∆ and co-conspirator

Melendez-Diaz v. Massachusetts

o Could prosecution bring in affidavit from chemist? o No exception, chemist has to come in o "Indicia of reliability test" is no longer really valid

Bruton v. United States

o Court discovered a specific kind of prejudice from joinder of ∆s when a confession is offered into evidence only one ∆, but also incriminates other ∆s when a confession is offered into evidence against only 1 ∆, but also incriminates other ∆s. o Normally when evidence is offered against one ∆ but not another, the judge instructs the jury not to consider that evidence against the other ∆ o But the court found that special considerations governed the confession issue, noting that it is very difficult to ignore testimony in which one co-∆ essentially says: "The other guy sitting here in the courtroom? He did it" o Bruton often requires prosecutors to sever co-∆s when a confession is part of the state's evidence • To have the confession considered against the non-confessing ∆ is not only prejudice, but also a constitutional violation Brief Fact Summary. Petitioner was tried with Mr. Evans (co-defendant) for armed postal robbery; both were convicted by a jury. At trial, the court allowed testimony of a witness, who indicated that co-defendant confessed to the crime and to having the help of Petitioner in committing the crime, to be admitted against co-defendant, but instructed the jury not to consider it in determining Petitioner's guilt. On appeal, the Circuit Court of Appeals upheld Petitioner's conviction, and Petitioner challenges, on certiorari, his conviction here. Synopsis of Rule of Law. When a co-defendant's confession implicates a criminal defendant, and the co-defendant does not testify at trial, the admission of the confession violates the criminal defendant's rights under the 6th amendment Confrontation Clause, even when jury instructions are given that instruct the jury to disregard the co-defendant's confession in deciding the criminal defendant's guilt. Facts. After a postal robbery occurred and Petitioner and co-defendant were put on trial, a postal inspector (Witness) was called to testify; Witness stated that during an interrogation of co-defendant, co-defendant orally confessed to the robbery and stated that Petitioner had joined him in committing it. Jury instructions were given that indicated to the jury that the testimony of Witness was properly considerable to determine co-defendant's guilt, but that the testimony was not be considered in determining the guilt of Petitioner. The jury convicted both Petitioner and co-defendant, and both appealed. On appeal, co-defendant's conviction was set aside, based on the trial court's allowance of the hearsay testimony concerning co-defendant's oral confessions to be heard by the jury. The appeals court, however, affirmed the conviction of Petitioner, because of the jury instructions that were given by the trial judge. Issue. Was it reversible error for the trial court to allow co-defendant's confession into evidence at the joint trial of Petitioner and co-defendant and instruct the jury to not consider the evidence in determining Petitioner's guilt? Held. Reversed and remanded. Yes; Petitioner's rights under the Confrontation Clause were violated by the admission of the evidence, despite the judge's instructions, because there was a substantial risk that the jury looked to the evidence in determining Petitioner's guild in contradiction of the instructions. Discussion. The Court reasoned that even though the jury was instructed by the trial judge to not consider the alleged confession of co-defendant in determining Petitioner's guilt, the jury would likely nonetheless at least bear it in mind in deciding Petitioner's fate. The Court quotes Judge Learned Hand, who stated that such a limiting instruction, "is a 'recommendation to the jury of a mental gymnastic which is beyond, not only their powers, but anybody's else . . . .'" The Court acknowledged that it was not possible to unequivocally know whether the jury considered the statement in deciding the guilt of Petitioner, but that the risk was so substantial that the jury did, that Petitioner's Confrontation Clause rights were violated by allowing the jury to physically hear the statements and to only protect Petitioner through an impossible to follow limiting instruction.

Washington v. Texas

o Court had to decide whether the right to compulsory process was violated by Texas statutes that prohibited testimony from persons charged or convicted as co-participants in the same crime. o Texas law prevented witnesses who were present from testifying due to presumed bias o BUT Court chose to read 6th Amendment broadly here • Framers did not intend to commit the futile act of giving to a ∆ the right to secure the attendance of witnesses whose testimony he had no right to use • Court treated the statues as an infringement on the right to compulsory process, and held insufficient the State's justification that the statutory disqualification would keep codefendants from lying to exonerate each other

Mitchell v. United States

o Court held that federal judges may not draw adverse inferences about "the facts of the offense" from a ∆'s silence at a sentencing hearing o Extends Griffin o Can't look at sentencing o Dissent called for Griffin to be overruled • Adverse inference does not compel anyone to testify • A guilty ∆ would choose to remain silent despite the adverse inference on the theory that it would do him less damage than his own cross-examined testimony.

Betts v. Brady

o Court held that there was a due process right to appointed counsel at state expense only when the failure to appoint counsel would be "offensive to the common and fundamental ideas of fairness."

Cuyler v. Sullivan

o Court rejected the facile distinction between retained and appointed lawyers, finding that ineffective assistance by retained lawyers is just as much a violation of the 6th Amendment as if the lawyer is appointed o State did not directly abridge the lawyer's ability to defend the client by failing to inquire into the potential conflict, and no rule of automatic reversal thus applies o Requiring proof that an actual conflict existed (a form of ineffective assistance) and that the conflict "adversely affected" the lawyer's performance (a form of prejudice)

Mickens v. Taylor

o Court said Holloway mandates a hearing only when trial counsel objects to the dual representation. o Even when the trial judge knows of the conflict, only an objection from counsel triggers the right to a hearing and an automatic reversal if no hearing is held.

Carter v. Kentucky

o Court unanimously held that ∆s have a right to an instruction from the judge that the jury should draw no inference from the failure to testify

Almendarez-Torres v. United States

o Court upheld the constitutionality of a federal statute that made it an offense, punishable by imprisonment of no more than 2 years, for a deported alien to be found in the United States o Statute also provided that if a judge determined by preponderance of the evidence that the deported alien had previously been convicted of an aggravated felony, the maximum sentence for illegally re-entering the US was 20 years

Gall v. United States

o District court gave sentence below guidelines o Reversed appellant court sentence o District court should begin all sentencing proceedings by correctly calculating the applicable Guidelines range o SC held that the sentence imposed by District Court was a reasonable one and satisfied the abuse of discretion standard of review o Kid bails out of conspiracy • Still a co-conspirator until you go to police to stop it • Therefore still criminally liable since 2 years involved o Judge gave 30 months probation o SC held that as long as judge explained, judge had discretion to go below FSG • Pre-indictment • Left conspiracy and rehabilitated on own

Holloway v. Arkansas

o Trial judge refused to appoint separate counsel for ∆s being tried jointly even though the single public defender stated that he was operating with a conflict of interest o Court held that when the trial judge is apprised of a potential conflict from joint representation, he must hold a hearing; the failure to hold a hearing requires automatic reversal on 6th Amendment grounds

Forms of Utilitarianism

o General Deterrence • ∆ is punished in order to convince the general community to forego criminal conduct in the future • ∆'s punishment serves as an object lesson to the rest of the community o Specific Deterrence • ∆'s punishment is meant to deter future misconduct by ∆ • Occurs in 2 Ways • (1) Incapacitation o ∆'s imprisonment • (2) Intimidation o ∆'s punishment reminds him that if he returns to a life of crime, he will experience more pain o Rehabilitation • Use the correctional system to reform the wrongdoer rather than to secure compliance through the fear or bad taste of punishment • Includes psychiatric care, therapy, academic or vocational training

5th Amendment

o Guarantees due process rights o Supports right to testify on own behalf o Malloy v. Hogan, 378 U.S. 1 (1964) • Made it federal • High likelihood that ∆ wouldn't want to testify o Prior bad acts to impeach o 4th Amendment issues

United States v. Booker

o Held both courts below correctly concluded that the 6th Amendment as construed in Blakely does apply to the Federal Sentencing Guidelines o The statutory maximum for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the ∆ o Any fact (other than prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the ∆ or proved to a jury beyond a reasonable doubt o The Guidelines become discretionary o The approach now is to make the Guidelines system advisory while maintaining a strong connection between the sentence imposed and the offender's real conduct - a connection important to the increased uniformity of sentencing that Congress intended its Guidelines system to achieve o The Act still requires judges to take account of the Guidelines together with other sentencing goals.

Hunter Rationale

o Hunter is limited to the single trial context thus leaving unsettled whether the same deference to the legislature is appropriate in the successive prosecution context o Green v. United States • The State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense thereby subjecting him to embarrassment, expense and ordeal

Mattox v. United States

o If you have a legally unavailable witness but the witness was cross-examined in a previous case, allowed to use that testimony o Can't cross-examine a dead person

Dual Sovereignty Doctrine

o Indian tribes, all 50 states, and the federal government are different sovereigns for the purpose of prosecuting crime o Can be charged with same case in both state or federal court • But between state to state, State's usually have own rule (legislative) that aren't allowed to look at same case in other states • DOJ policy is to not charge again unless the appearance of unjust or corruption on the state level

2 Kinds of Grand Juries

o Investigative • Subpoena power • Secret grand jury to view evidence, confidential informants • Will eventually indict • Issues come up in police brutality • Is DA playing it straight down the middle? • Ways to shield because secret

People v. Holloway

o Judge warned jurors about the possibility of a mistrial resulting from corruption by outside influences and urged them to dot heir best to avoid it by not reading the newspapers o Juror read newspaper and found out ∆ served time for assaulting woman with a hammer o CA court reversed because could not determine whether juror misconduct did not prejudicially affect the outcome of the trial

Remmer v. United States

o Juror was approached during trial and told that he could profit by returning a verdict favorable to ∆ o FBI checked it and determine was made in jest • No one informed the ∆ o After conviction, ∆ learned of the remark through the newspaper o SC vacated and remanded for a determination of whether the contact was "harmful" to ∆

Jury nullification

o Jury rejects version of law o When nullifies law and convicts → Basis for appeal o When nullifies law and acquits → NO BASIS FOR APPEAL • Do not have RIGHT to nullify, only POWER to nullify o Historically juries do it when laws are unjust • Ex: Acquittal of carrying gun in rough neighborhood • Ex: Acquittal of smoking weed • Ex: Acquittal of Vietnam war protestors • Voire Dire offers nullification questions

Sequestration

o Keeps witnesses from influencing each other Portuondo v. Agard, 529 U.S. 61 (2000) • ∆ offered consent as a defense to charges of sodomy and assault and the whole trial turned on the credibility of the victim, the victim's friend, and the ∆ • Prosecutor says "∆ gets to sit here and think what he is going to say next and how I'm going to fit it into the evidence" • ∆ objected on ground there were impermissible penalty on his 6th Amendment right to be present in courtroom • Court said Griffin prohibits the judge and prosecutor from suggesting that the jury use the ∆'s silence as evidence of guilt. • Comments invited only an adverse inference about credibility, an issue that a ∆ always puts into play when he takes the witness stand

Barker Factors

o Length of delay and responsibility to assert the right o Reason for delay 3 Kinds of Prejudice • 1) Anxiety and concern • 2) Oppressive pretrial incarceration • 3) To limit the possibility that the ∆ will be impaired

Determinate Sentencing

o No Range/Truth in Sentencing o Ex: Prior violent felony o No parole, just do time o Still good time credit but very small (NY - 1/8) o Starts in late 60s and hits high point in 1984 • Enactment of Federal Sentencing Guidelines → came into effect in 1987 • Started a movement in the states to reflect FSG • Reduced disparity • Raised overall sentencing • Many state systems mimicked Fed system

Allen Charge

o Note of hung jury o Judge asks to go back o Needs to be very balanced

Faye v. Noia

o Old rule o Substantially narrowed • SC has authority over state cases when there is a violation of federal law • Habeas Corpus goes to District Court • Allows for Constitutional review in Federal District Court • Errors

Indeterminate Sentencing

o Parole at low end of sentence • Have to do low number o On parole for remaining of sentence o Get time off for good time credit o 1.5 times between the min and max o Parole Board • Appointees of governor o Reasons get parole • Overcrowding • Became political and corrupt

Blue wall of silence

o Unwritten code that police do not disclose perjury or other misconduct of fellow officers

Hill v. Lockhart

o Prejudice requirement focuses on whether counsel's constitutionality ineffective performance affected the outcome of the plea process o ∆ must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial o Includes every stage → including plea bargaining CASE SYNOPSIS Petitioner inmate pleaded guilty in state court to first degree murder and theft of property. The inmate sought federal habeas relief on grounds that his attorney had failed to advise him that he was required to serve one-half of his sentence before becoming eligible for parole. The United States Court of Appeals for the Eighth Circuit affirmed the district court's decision denying relief. The inmate's petition for certiorari was granted. CASE FACTS The inmate contended that his guilty plea was involuntary as a result of ineffective assistance of counsel because his court-appointed attorney supplied him with information about parole eligibility that was erroneous. DISCUSSION On certiorari, the United States Supreme Court held that the inmate's allegations were insufficient to establish grounds for habeas relief. The Court found that the district court properly declined to hold a hearing on the inmate's claim of ineffective assistance of counsel because the inmate had failed to allege the type of prejudice that was necessary to grant relief. The Court stated that the inmate 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. The Court found that the inmate alleged no special circumstances that would have supported the outcome that he placed particular emphasis on his parole eligibility in deciding whether or not to plead guilty. CONCLUSION The Court affirmed the appellate court's judgment upholding the district court's denial of habeas relief.

Retributivism

o Punishment is justified when it is deserved o It is deserved when the wrongdoer freely chooses to violate society's rules. o Wrongdoer should be punished whether or not it will result in a reduction in crime o Looks backward and justifies punishment soley on the basis of the voluntary commission of a crime

Chambers v. Mississippi

o Rights to confront and cross-examine witnesses and to call witnesses in one's own behalf have long been recognized as essential to due process o Court kept it narrow • Establish no new principle of constitutional law • We hold quite simply that under the facts and circumstance of this case the rulings of the trial court deprived Chambers of a fair trial o Adverse is hostile o Third party defense • Had a guy who confessed and three witnesses o Trial judge did not allow full

Rock v. Arkansas

o Rock charged with manslaughter for shooting her husband during an argument o Underwent hypnosis to refresh her memory o Trial court did not allow this kind of testimony o SC overruled saying that it infringed Rock's right to testify in her own defense • Under the 5th Amendment, still allowed to testify

Stone v. Powell

o SC held that federal courts have no power to review 4th Amendment claims against state convictions as long as the state courts have "fully and fairly" considered the 4th Amendment claim o First case where court puts break on habeas o Want to protect trial rights more than privacy rights o Not all Constitutional rights are equal, and 4th Amendment rights are not subject to Habeas • Cause and Prejudice test in Procedural Error • Failure to give/get Miranda warnings is applicable to Habeas Remedy

Walton v. Arizona

o SC upheld a capital sentencing system that permitted judges, rather than juries, to find the specific aggravating factors justifying the imposition of death in capital sentencing proceedings o Later reversed in Ring v. Arizona because of Apprendi

Grand Jury Functions

o Sword Function of the Grand Jury • How prosecutors use grand juries to gather evidence and to investigate crime • Effectively an adjunct to the prosecutor and serves the interests of the executive branch o Shield Function of the Grand Jury • To keep the executive from harassing citizens with ill-founded prosecutions • Revolutionary War • 2 Different Mechanisms • The magistrate who hears the preliminary hearing • Grand Jury o Both require the government to make a threshold showing of probable cause that a crime has been committed and that the ∆ is the one who committed the crime o Lack importance in screening cases

Compulsory Process

o The Compulsory Process Clause of the Sixth Amendment to the United States Constitution allows defendants in criminal cases to secure witnesses in their favor through the issuance of a court-ordered subpoena. • Subpoena duces tecum o Records AND testify • The accused is the right "to have compulsory process for obtaining witnesses in his favor" • ∆ are routinely given full access to the subpoena power o However much more limited and not absolute • Ex: Want to show police falsified evidence o Need to present enough relevant evidence before judge would sign

Patterson v. New York

o The New York law required that the defendant in this and any prosecution for second-degree murder prove by a preponderance of the evidence the affirmative defense of extreme emotional disturbance in order to reduce the crime to manslaughter. o The Court decided that shifting the burden of proof to the Defendant of a mitigating circumstance affirmative defense does not violate the Due Process Clause of the U.S. Constitution. o NY Murder • (1) Intent to kill • (2) Causing the death of another • (3) Burden on ∆ to prove EED (extreme emotional disturbance)

Jones v. United States

o The fact that serious bodily injury (or death) occurred did not need to be alleged in the indictment, did not need to be submitted to the jury for proof, and did not need to be found to exist beyond a reasonable doubt o Raised the maximum based on judge's determination of facts was held to violate due process o Apprendi is same as Jones but applies to States

Illinois v. Somerville

o The prosecutor went to trial with an indictment that did not charge a crime under state law and could not be remedied by amendment o The only alternative to a mistrial was to proceed to verdict; if the verdict was a conviction, it would be subject to automatic reversal o A trial judge properly exercises his discretion to declare a mistrial if an impartial verdict cannot be reached, or if a verdict of conviction could be reached but would have to be reversed on appeal due to an obvious procedural error in the trial o Court held not jeopardy bar • Weird and outlier case because doesn't follow Downum

Utilarianism

o The purpose of all laws is to maximize the net happiness of society o Law should be used to exclude as far as possible all painful or unpleasant events o Utilitarians reason hat the threat of imposition of punishment can reduce crime because pain and pleasure are the great springs of human action and in matters of importance everyone calculates o He will avoid criminal activity if the perceived potential pain (punishment) outweighs the expected potential pleasure (criminal rewards)

3 Types of Incorporation

o Total→Incorporates all rights in Bill of Rights o Fundamental Rights o Selective

Morgan v. Illinois

o Trial court must, at the ∆'s request, inquire into the venireperson's views on capital punishment and exclude for cause any prospective juror who would vote for death penalty without regard to mitigating evidence presented at the capital sentencing hearing

Neder v. United States

o ∆ argued that there was no difference between a jury being improperly instructed on the burden of proof beyond a reasonable doubt and a jury knowing of an element that it must find beyond a reasonable doubt o SC rejected and said that an instruction that omits an element of the offense does not necessarily render a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence o SC reasoned that the failure to instruct on an element of an offense is different in kind from such structural defects as the complete deprivation of counsel or trial before a biased judge

United States v. Barrett

o ∆ was indicted for kidnapping a 5-year old whom he allegedly sexually abused and abandoned beneath a highway underpass in NC o Judge said "there is no way on God's green Earth I'm going to sentence him to only 7 years, and I think the likelihood is I'm going to exceed the guidelines." o Plead guilty and was sentenced to life imprisonment o ∆ later sought to have his conviction overturned on the ground that the judge violated FR 11 o ∆ was permitted to throw out guilty plea b/c of judge's involvement

14th Amendment Due Process Theories

• 1. Total Incorporation o Bill of Rights o Justice Hugo Black • Orginalist • Original intent of framers • Textualist • Only look at text • Strict Constructionist • 2. Fundamental Rights o Justice John Harlan • Fundamental Fairness • Narrow concept • But not confined to text • 3. Selective Incorporation o Rest of court • Not incorporated o Grand Jury o Size of Juries

Coleman v. Alabama

• 6th Amendment Right to Counsel • Attaches to every critical stage of prosecution o STARTS AT ARRAIGNMENT o Includes in the Preliminary Hearing • Were not assigning lawyers in their preliminary hearing • Brief Fact Summary • Petitioners were not allowed counsel at a lineup or at a preliminary hearing, and they were convicted of assault with intent to murder. Synopsis of Rule of Law • Failing to provide counsel at a preliminary hearing is an unconstitutional denial of assistance of counsel. Facts • In the absence of counsel, petitioners were shown in a police lineup and required to say words used by one of the attackers. At this lineup, the victim was able to identify them. The petitioners were not provided counsel at a preliminary hearing that was not required by Alabama law, but the state did not use anything from the preliminary hearing at the trial. The petitioners were convicted of assault with intent to murder, appealed and were unsuccessful. The Supreme Court of Alabama denied review of the convictions and the petitioners were granted certiorari. Issue • Are a criminal defendant's rights to counsel denied by their not being presented with the assistance of an attorney at a preliminary hearing? Held • Yes. • Vacate the convictions and remand the case for a determination of whether the denial of right to counsel here was either harmless or prejudicial error. • The preliminary hearing is a critical stage of the prosecution, therefore the furnishing of counsel is required constitutionally. • Also, the in-court identification of the defendants did not stem from a lineup procedure giving rise to a substantial likelihood of misidentification. Concurrence • Justice Hugo Black stated that the right to counsel at the preliminary hearing was guaranteed by the Sixth and Fourteenth Amendments as opposed to any right to a "fair trial." • Justice William Douglas, taking a strict constructionist view, expressed the opinion that the right to counsel at a preliminary hearing was guaranteed under the Sixth Amendment. • Justice Byron White pondered whether requiring appointment of counsel at preliminary hearings might invite elimination of such a procedure entirely. • Justice John Marshall Harlan concurred, but dissented in saying that the convictions should not be reversed unless the defendants were able to show that their not having counsel at the hearing had resulted in favorable testimony not being heard. Dissent • Justice Warren Burger dissented in saying that the constitution did not require assistance of counsel at the preliminary hearing, but concurred in saying that the lineup procedure did not give rise to a substantial possibility of misidentification. Discussion • This is a very important case in its clear requirement that assistance of counsel must be given to a criminal defendant at a preliminary hearing. This case, plus other cases such as United States v. Wade, 388 U.S. 218 (1967), and Miranda v. Arizona, 384 U.S. 436 (1966) have created a body of opinions giving some clarity to the question of when the right to counsel attaches.

Faretta v. California

• 6th Amendment issues • Right to self counsel • Attorney can't plea guilty • Choice of counsel • History o Generally not allowed • Waiver must be knowingly and intelligible • Standby counsel for someone who represents them pro se Brief Fact Summary. Petitioner appealed from a conviction when his waiver of the right to counsel was denied. Synopsis of Rule of Law. While there is a sixth amendment right to counsel, that does not abrogate the defendant's right to self-representation. Facts. Petitioner asked to represent himself, and after the trial Judge held a hearing to determine whether he could conduct his own defense, he was denied that. Faretta was then found guilty as charged and sentenced to prison when he was forced to accept a public defender. From this conviction, he appealed. Issue. Whether a defendant may waive the right to counsel in the interest of self-representation. Held. Justice Stewart, for the court, held "it is one thing to hold that every accused has the right to the assistance of counsel, and quite another to say that a State may compel a defendant to accept a lawyer he does not want." Dissent. In two dissents, both Justice Burger and Justice Blackmun write that there is nothing constitutional that requires a state to allow a defendant to conduct his own defense. Discussion. Just as there is a sixth amendment right to counsel, a defendant also has the right to chose to represent himself.

Miller-El v. Texas

• African-Americans can no longer be totally excluded from jury lists by statute, nor can they be totally excluded by the discriminatory application of facially neutral statutes • The selection of a petit jury from a representative cross section of the community is an essential component of the 6th Amendment right to jury trial • Race does produce a perspective on human events that cannot be excluded without subverting the representativeness of the jury.

WHy grand Juries do not protect the accused

• An extremely high percentage of cases submitted to grand juries result in indictments • Jurors simply approve whatever charges the government submits • Federal prosecutors know that virtually all of their charging decisions must be approved by the grand jury • Grand jurors are asked one question o Is there probable cause to believe that the suspect committed the specified crime? • Solution is to replace grand jury with a preliminary hearing but creates 2 problems o Fails to satisfy the 5th Amendment o Fails to achieve the goal of having a non-government actor review the charging decisions

Mooney v. Holohan

• Any reasonable likelihood that it would have affected the result • Prosecution o Bad Faith; suborns perjury • ∆ o No request required • Standard o Any reasonable likelihood → Jury

Jackson v. Virginia

• Appealing judges failure to find verdict was not proper • Whether any rational fact finder could have concluded beyond a reasonable doubt that the killing for which the petitioner was convicted was premeditated • CASE SYNOPSIS • Petitioner inmate was convicted after a state bench trial of first degree murder. The Court of Appeals for the Fourth Circuit reversed the district court's grant of habeas corpus relief on the basis that there was no evidence of premeditation because some evidence existed that the inmate intended to kill the victim. • The inmate was granted certiorari. CASE FACTS • The inmate claimed that a federal habeas court did not have to consider whether there was any evidence to support his state court conviction, but had to determine whether there was sufficient evidence. DISCUSSION • The Court held that, assuming the procedural prerequisites were satisfied, the inmate was entitled to habeas relief if there was evidence that no rational trier of fact could have found proof of guilt beyond a reasonable doubt. • The Due Process Clause of the Fourteenth Amendment protected a criminal defendant against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime charged. • A state prisoner who alleged the evidence could not be fairly characterized as sufficient to have led a rational trier of fact to find guilt beyond a reasonable doubt stated a constitutional claim cognizable in a federal habeas proceeding. • Review of the record in the light most favorable to the prosecution established a rational fact finder could readily have found the inmate guilty beyond a reasonable doubt of first degree murder under state law. CONCLUSION • The judgment of the appellate court reversing the district court's order granting habeas corpus relief to the inmate was affirmed.

Jury Decision-Making

• First items, motions and limiting • Then jury selection/voire doire • Then Opening statements • Puts on case • Always motion to dismiss case o Almost always denied • Instruction Conference o Discuss various points about jury instructions between ∆ and prosecution before the jury instructions are given o Sometimes give circumstantial evidence instruction • Instruction on how to weigh inferences • Closing statements

United States v. Brechner

• Asked to provide assistance in 3rd party • ∆ lied during proffer session o The lie was enough to remand to reverse on lower court's ruling an vacate the sentence and remand for resentencing CASE SYNOPSIS The prosecution challenged a downward sentencing departure by the United States District Court for the Eastern District of New York in a tax evasion case. The trial court held that the prosecution had breached the plea agreement by not moving for the departure after defendant lied in a proffer session. CASE FACTS Defendant pleaded guilty to tax evasion pursuant to a plea agreement in which he agreed to cooperate in another investigation. In a debriefing session defendant lied about his misconduct. The prosecution, contending that defendant had breached the cooperation agreement, did not move for a downward departure as originally agreed. The trial court held that the prosecution withdrew in bad faith and included the departure in the sentence. The prosecution sought review. The court vacated the sentence and remanded for resentencing. DISCUSSION The court held that defendant's lies, although promptly corrected, damaged his credibility as a potential witness in the ongoing investigation and reduced the value of his cooperation. The court held that defendant's falsehoods justified the prosecution's withdrawal from its agreement to move for a downward departure. CONCLUSION The court vacated the sentence and remanded for resentencing. By lying about his past conduct defendant substantially reduced the value of his cooperation and the prosecution acted reasonably in not moving for a downward departure as it had originally agreed to do.

Lafler v. Cooper

• Charged with assault in intent to kill • Offer is made but plea was not in best offer because "couldn't prove intent because shot in leg" o Absurd and wrong o Effectively malpractice • No issue with Prong 1 • Prong 2 is issue o Here you are comparing a trial v. a plea • Prejudice o If for plea • Courts are more willing to and sensitive to ineffective assistance of counsel Holding • Where counsel's ineffective advice led to an offer's rejection, and where the prejudice alleged is having to stand trial, a defendant must show that but for the ineffective advice, there is a reasonable probability that the plea offer would have been presented to the court, that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer's terms would have been less severe than under the actual judgment and sentence imposed. Judgment • Vacated and remanded, 5-4, in an opinion by Justice Kennedy on March 21, 2012. Justice Scalia filed a dissenting opinion, in which Justice Thomas joined and in which Chief Justice Roberts joined as to all but Part IV. Justice Alito also filed a dissenting opinion.

Strickland v. Washington

• Comes out of a death penalty case • Death penalty requires bifurcated trial o Guilty or not o Death or jail • Aggravating circumstances o Brutalness o Killing a police officer o Killing a judge or witness o Serial killer, etc • Defined by statute • Mitigating circumstances o Can't limit them o Confesses o Preexisting mental conditions • Depression, child abuse, sexual abuse, etc. • Potentially Ineffective o No other character evidence o No psychiatric evaluation o Presentence report • SC creates test o (1) Deficient performance • Has to be really bad • Objective standard/reasonableness • Deference/not second guessing lawyer o (2) Caused the negative outcome • Prejudice • Results would have been different • Undermines confidence o The ∆ must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. • A reasonable probability is a probability to undermine confidence in the outcome • Issue is that doesn't bring up the fact that lawyering could have been substandard • In the course of her opinion, Justice O'Connor fully delineated the rule on what the Sixth Amendment encompasses when it considers effective assistance: o First the benchmark for judging any claim of ineffectiveness must be whether the counsel's conduct so undermined the proper functioning of the judicial process that the entire trial cannot be relied upon as just in result; o Next the defendant must meet a two prong test in order to show that assistance of counsel was so defective as to require reversal or setting aside of a death sentence: • (1) the counsel's performance must be deficient, and • (2) that deficient performance must have prejudiced the defendant so much as to have deprived him of a the right to a fair trial; • When judging the performance of an attorney, counsel must be given a great deal of latitude, considering all circumstances. Each case must be considered on a case-by-case basis; and • Also, in a federal habeas challenge to a state criminal judgment, a state court conclusion that counsel rendered effective assistance is not a finding of fact binding on the federal court, but it is a mixed question of law and fact. Brief Fact Summary. After being sentenced to death, Petitioner filed for a writ of Habeas Corpus on the grounds that he was given ineffective assistance of counsel. Synopsis of Rule of Law. error, alone, is not sufficient to prove that a defendant was deprived of their constitutional right to effective assistance of counsel. Facts. Respondent, Strickland, during a ten-day period, committed three groups of crimes, including three brutal capital murders, torture, kidnapping and attempted murders. Respondent pled guilty to all crimes and, stated that he accepted responsibility for the crimes and had only acted under extreme mental stress resulting from his inability to care for his family. Against the advice of his counsel, he waived his right to an adversarial jury at his sentencing hearing, and chose to be sentenced by the Judge. Because the defendant had already claimed extreme mental stress, his counsel used that, along with information from his wife and mother to establish his character. He did not request psychiatric evaluation, did not look for further mitigating evidence, and did not request a pre-sentencing report. Counsel's decisions were said to reflect his hopelessness after his client pled to all offenses. Strickland was sentenced to death, and he sought habeas corpus relief due the failu res of his counsel to come up with mitigating evidence. Issue. Whether, after a defendant has pled guilty in a capital murder case, counsel has a duty to present mitigating evidence, in order to meet the Sixth Amendment standard for effectiveness. Held. The Supreme Court, in an opinion authored by Justice O'Connor, held that while counsel may have committed error, it was not so ineffective as to overturn a death sentence. Dissent. Justices Brennan and Marshall dissented, holding that in the case of a capital crime, sentencing should be reconsidered if the counsel is found to have committed error. Discussion. In the course of her opinion, justice O'Connor fully delineated the rule on what the Sixth Amendment encompasses when it considers effective assistance: First the benchmark for judging any claim of ineffectiveness must be whether the counsel's conduct so undermined the proper functioning of the judicial process that the entire trial cannot be relied upon as just in result; Next the defendant must meet a two prong test in order to show that assistance of counsel was so defective as to require reversal or setting aside of a death sentence: (1) the counsel's performance must be deficient, and (2) that deficient performance must have prejudiced the defendant so much as to have deprived him of a the right to a fair trial; When judging the performance of an attorney, counsel must be given a great deal of latitude, considering all circumstances. each case must be considered on a case-by-case basis; and Also, in a federal habeas challenge to a state criminal judgment, a state court conclusion that counsel rendered effective assistance is not a finding of fact binding on the federal court, but it is a mixed question of law and fact.

∆'s Right to Testify

• Constitution does not explicitly guarantee the accused the right to testify in his defense o Rationale was untrustworthiness of party's testimony • Common law also disabled testimony of the accuser as well as the accused

Brady v. United States

• Constitutionality of Plea Bargaining • Voluntarily, Intelligently, Knowingly • Pressure is ok, not coerced • Voluntarily o No one is being unfair in the pressure they put on o Death sentence is possible → nothing unconstitutional about that • Plea Brief Fact Summary • The Petitioner plead guilty to kidnapping after his co-defendant decided to confess and testify against him. The voluntariness of the Petitioner's plea was at issue. Synopsis of Rule of Law • "[There is] no requirement in the Constitution that a defendant must be permitted to disown his solemn admissions in open court that he committed the act with which he is charged simply because it later develops that the State would have had a weaker case than the defendant had thought or that the maximum penalty then assumed applicable has been held inapplicable in subsequent judicial decisions." Facts • The Petitioner, in 1959, was charged with violating 18 U.S.C. Section: 1201(a), a statute prohibiting kidnapping. Pursuant to the statute, since the individual the Petitioner kidnapped eventually died, the Petitioner could have received the death penalty. The petitioner initially plead not guilty. After learning that his co-defendant confessed to the authorities, would plead guilty and be available to testify against him, the Petitioner decided to plea guilty. Prior to the Petitioner entering his plea, the trial judge questioned him twice about the voluntariness of his plea. The Petitioner was sentenced to fifty years in prison and it was later reduced to thirty. • In 1967, pursuant to 28 U.S.C. Section: 2255, Petitioner sought relief arguing that his guilty plea was not voluntary in that Section:1201 (a) worked to coerce his plea, because his counsel exerted impermissible pressure upon him and "because his plea was induced by representations with respect to reduction of sentence and clemency." • The District Court of the District of New Mexico denied relief and the Circuit Court affirmed concluding that the District Court's finding were supported by substantial evidence. Specifically approving of the District Court's finding that petitioner's plea of guilty was voluntary. Issue • Whether "Jackson requires the invalidation of every plea of guilty entered under [Section:1201(a)], at least when the fear of death is shown to have been a factor in the plea[?]" Held • The majority first analyzed the United States v. Jackson, which like the instant case dealt with Section:1202(a). In Jackson, the "[t]he District Court dismissed the 1201(a) count of the indictment, holding the statute unconstitutional because it permitted imposition of the death sentence only upon a jury's recommendation and thereby made the risk of death the price of a jury trial. This Court held the statute valid, except for the death penalty provision; with respect to the latter, the Court agreed with the trial court 'that the death penalty provision ... imposes an impermissible burden upon the exercise of a constitutional right ...." Further, the Jackson court observed "[t]he problem was to determine 'whether the Constitution permits the establishment of such a death penalty, applicable only to those defendants who assert the right to contest their guilt before a jury.' The inevitable effect of the provision was said to be to discourage assertion of the Fifth Amendment right not to plead guilty and to deter exercise of the Sixth Amendment right to demand a jury trial. Because the legitimate goal of limiting the death penalty to cases in which a jury recommends it could be achieved without penalizing those defendants who plead not guilty and elect a jury trial, the death penalty provision 'needlessly penalize(d) the assertion of a constitutional right,' and was therefore unconstitutional." • The majority rejected the petitioner's argument that "Jackson requires the invalidation of every plea of guilty entered under that section, at least when the fear of death is shown to have been a factor in the plea." To the contrary, the majority observed, "Jackson ruled neither that all pleas of guilty encouraged by the fear of a possible death sentence are involuntary pleas nor that such encouraged pleas are invalid whether involuntary or not. Jackson prohibits the imposition of the death penalty under 1201(a), but that decision neither fashioned a new standard for judging the validity of guilty pleas nor mandated a new application of the test theretofore fashioned by courts and since reiterated that guilty pleas are valid if both 'voluntary' and 'intelligent.' " • Additionally, the court recognized that "[w]aivers of constitutional rights [in this case the right to a trial before a jury or judge] not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences." Based on the facts before it, Brady's plea was not invalid. The majority relied on how "[t]he trial judge in 1959 found the plea voluntary before accepting it; the District Court in 1968, after an evidentiary hearing, found that the plea was voluntarily made; the Court of Appeals specifically approved the finding of voluntariness." • "The voluntariness of Brady's plea can be determined only by considering all of the relevant circumstances surrounding it." • "Insofar as the voluntariness of his plea is concerned, there is little to differentiate Brady from (1) the defendant, in a jurisdiction where the judge and jury have the same range of sentencing power, who pleads guilty because his lawyer advises him that the judge will very probably be more lenient than the jury; (2) the defendant, in a jurisdiction where the judge alone has sentencing power, who is advised by counsel that the judge is normally more lenient with defendants who plead guilty than with those who go to trial; (3) the defendant who is permitted by prosecutor and judge to plead guilty to a lesser offense included in the offense charged; and (4) the defendant who pleads guilty to certain counts with the understanding that other charges will be dropped. In each of these situations, as in Brady's case, the defendant might never plead guilty absent the possibility or certainty that the plea will result in a lesser penalty than the sentence that could be imposed after a trial and a verdict of guilty. We decline to hold, however, that a guilty plea is compelled and invalid under the Fifth Amendment whenever motivated by the defendant's desire to accept the certainty or probability of a lesser penalty rather than face a wider range of possibilities extending from acquittal to conviction and a higher penalty authorized by law for the crime charged." • Further, the majority relied on Bram and how the petitioner's confession "depended upon whether it was compelled within the meaning of the Fifth Amendment. To be admissible, a confession must be 'free and voluntary: that is, must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence.' " Also, that "Bram is not inconsistent with our holding that Brady's plea was not compelled even though the law promised him a lesser maximum penalty if he did not go to trial." • The voluntariness of plea of guilty must be governed by the following standard "(A) plea of guilty entered by one fully aware of the direct consequences, including the actual value of any commitments made to him by the court, prosecutor, or his own counsel, must stand unless induced by threats (or promises to discontinue improper harassment), misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by promises that are by their nature improper as having no proper relationship to the prosecutor's business (e.g. bribes)." • Finally, the majority observed that the plea was intelligently made, in that he was "advised by competent counsel, he was made aware of the nature of the charge against him, and there was nothing to indicate that he was incompetent or otherwise not in control of his mental faculties; once his confederate had pleaded guilty and became available to testify, he chose to plead guilty, perhaps to ensure that he would face no more than life imprisonment or a term of years." Discussion • The Supreme Court adopts a standard whereby the totality of the circumstances are examined when ascertaining when a plea was voluntarily, intelligently and knowingly made.

Bail and Other Release Mechanisms

• Courts will release a ∆ if he can arrange to have bail bond posted in the amount of money set by the judicial officer • Courts assume that ∆s released on bond will return for future court appearances rather than lose their money or pledged collateral • Bondman would post the amount of the bail bond o Would require ∆s or their friends and relative to post collateral or agree to indemnify the bondsman if the bond were forfeited for nonappearance o Judicial officer sets bail in a specific amount, or sets bail mechanically by reference to a "bail schedule" that fixes bond amounts in accordance with the seriousness of the charge o ∆ pays 10% nonrefundable fee o The ∆ may also need to provide collateral equal or greater to the bond • Consequences o Relying on $ bail system is that the ∆'s freedom hinges largely on 1 factor → the ability to raise money o Even if charges are serious, ∆ can get out if raises money o If ∆ can't raise money, stuck in jail regardless of seriousness or flight risk

Joinder as source of bias

• Danger when join, going to infer guilt to both o Jury might confuse evidence in a way that is harmful to ∆s when the evidence supporting some counts is weaker than others. o Inference based on the old saying "where there's smoke there's fire" o Studies are unanimous in finding that ∆s do face a greater likelihood of conviction if offenses are tried jointly rather than separately and joinder increases with the number of offense charged o Prejudicial effect of joinder is greatest when the jury is presented with multiple similar offenses, the case is weak, and the ∆ is more likely to be innocent • Rule 8 is permissive in scope, giving permission to proceed with joinder in certain categories of cases but not requiring joinder • Rule 14 requires severance of counts or ∆s when prejudice exists o Upon proof of (undue) prejudice ESPECIALLY regarding ∆'s statement

Batson v. Kentucky***

• Dealing with Equal Protection • Applies to ∆ and jurors • Steps o 1) Must show pattern o 2) Makes a motion to challenge (Batson Challenge) o 3) Burden shift to prosecution to show neutral reasons • No eye contact, tapping foot → could be lame and usually are o 4) Judge makes call • Race, Ethnicity, Gender issues • Brief Fact Summary • This appeal was brought after the State used peremptory challenges to strike all black jurors from the trial of a black man. Synopsis of Rule of Law • Peremptory challenges are subject to the Equal Protection Clause. Facts • Petitioner, Batson, was indicted in Kentucky on charges of burglary and receipt of stolen goods. During trial of the matter, the judge conducted voir dire and excused certain jurors for cause. When it came time for peremptory challenges, the prosecutor used his to remove all of the black persons left on the venire, which left Batson, a black man, to be tried by an all-white jury.. Defense counsel objected before the jury was sworn in, and the judge overruled the objection on the grounds that peremptory challenges could be against "anybody they want." Petitioner was convicted on both counts. Issue • Whether a party may use peremptory challenges to remove members from a jury venire who are demographically similar to the defendant. Held • Justice Powell, for the court, wrote the opinion, opining that when it appears the prosecutor is using challenges in violation of equal protection, the State bears the burden of proving a reason for the challenges. Dissent • Justice Burger, for the dissent, writes that by requiring a reason behind a challenge and requiring the state to bear the burden of proof that challenges are not in violation of Equal Protection has the effect of taking away the "peremptory" nature of the challenge. Concurrence • Justice Marshall, in his concurrence, writes that the use of peremptory challenges to distort the jury process by exclusion on racial grounds should lead the Court to banning challenges altogether. Discussion • The gist of this case is that, while peremptory challenges are afforded to balance the jury process, when a defendant proves that there is a possibility they are being used in violation of Equal Protection, the State must prove that the challenges are for any other "valid reason".

Responsibilities of a Criminal Defense Attorney

• Defense attorneys must zealously and uncompromisingly represent the client. o May have to offend, do the uncomfortable thing • Defense counsel must be both an advisor and an advocate with courage and devotion • Committed defense attorney must be prepared to ensure that before the government takes away the client's liberty, the process of doing so is fair and true.

State v. Reldan

• Direct evidence is witness saw, camera saw, and admission • Linkage was hard to dispute • CASE SYNOPSIS • Defendant was charged with two first-degree murders in separate counts of a single indictment, and sought to prevent joinder of the crimes in a single trial on the basis that it was prejudicial. DISCUSSION • The court denied defendant's motion to sever the two offenses of first-degree murder in a single indictment to be tried in separate trials because one trial would not be prejudicial to defendant, but would maintain judicial economy. • The court concluded that even if the defendant took the stand to testify as to one count of murder, that fact alone was not dispositive of a motion to sever so as to divest a court of all control over the matter. • The court rejected defendant's argument that a joint trial would result in the jury using evidence of one of the crimes to infer a criminal disposition on the part of defendant to commit the other crime because the facts demonstrated sufficient similarity in the details of both murders to permit evidence of one murder to be introduced into evidence to show identity of the other. • The court based this conclusion on the fact that the manner of the two murders and of the disposal of the victims was so unusual and distinctive as to mark the crime as having been committed by a single individual. • The court concluded this evidence was sufficiently probative to justify its admission, and outweighed any prejudice to defendant. CONCLUSION • The court denied defendant's motion to sever the two first-degree murder offenses and try them separately because the evidence of both murders were so unusual and sufficiently similar and probative to permit evidence of one murder to be introduced to show identity of the other.

North Carolina v. Alford

• Don't have to admit to any guilt • Not admitting to have actually done it • Most states, judges are not compelled to do this • Basically the same as a Nolo Contendre Plea • Brief Fact Summary • Appellee, facing the death penalty for first-degree murder, accepted a guilty-plea for murder, while maintaining his innocence. The Court of Appeals found that the plea was involuntary based on his fear of the death penalty. Synopsis of Rule of Law • "An individual accused of 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 the acts constituting the crime." Facts • Appellee Alford was indicted for first-degree murder, and faced the death penalty if convicted by a jury. Substantial evidence pointed to his guilt. He accepted a guilty plea for second-degree murder, thus avoiding the death penalty. He did not admit any guilt, but the court heard substantial eye-witness testimony. On review, the Court of Appeals found that the plea was involuntary because it was motivated by fear of the death penalty. Issue • "[Whether a guilty plea [made out of fear of the death penalty] can be accepted when it is accompanied by protestations of innocence." Held • Yes. The Supreme Court of the United States first cited Brady v. United States, which held that "a plea of guilty which would not have been entered except for the defendant's desire to avoid a possible death penalty and to limit the maximum penalty to life imprisonment or a term of year was not for that reason compelled within the meaning of the Fifth Amendment." As this standard still applied, the Supreme Court held that, "without more" the Court of Appeals would be vacated and remanded. However, the additional fact that the appellee Alford "entered his plea but accompanied it with the statement that he had not shot the victim" led the Supreme Court to consider the matter further, as, generally, "a judgment of conviction resting on a plea of guilty is justified by the defendant's admission that he committed the crime charged against him and his consent that judgment be entered without a trial of any kind." The Supreme Court cited some precedence, but concluded that they were different as Alford had insisted on his innocence. • The Supreme Court also noted the substantial evidence provided by witnesses which tended to demonstrate his guilt. The Supreme Court concluded that "[i]n view of the strong factual basis for the plea demonstrated by the State and Alford's clearly expressed desire to enter it despite his professed belief in his innocence," there was no error in accepting the plea. Dissent • Justice Brennan, joined by Justice Douglas and Justice Marshall, argued that the facts showed Alford was "so gripped by fear of the death penalty" that "his decision to plead guilty was not voluntary." Discussion • "When [a defendant"s] plea is viewed light of the evidence against him, which substantially negated his claim of innocence and which further provided a means by which the judge could test whether the plea was being intelligently entered, its validity cannot be seriously question."

Duties of Defense Counsel

• Duty of Diligence o Keeping up with cases • Duty of Competence o Issues of training • Duty of Loyalty o Very difficult to balance time and effort o Pleading out one case to work on another? • Duty of Avoiding conflicts o "Today's ∆ is tomorrow's victim" o 1 law office is considered one person so need to have separate attorneys where defendants are codefendants • Duty of Confidentiality o Issues come up in plea bargaining and dealings • Need to speak with client beforehand • Duty of Communication o Hardest o Duty to tell them everything about the case even though they could be illiterate or very poorly educated o Language of communication in order for them to understand • Duty of Candor to Court o What my client says to me is Privileged • Can refuse to disclose these issues to court o However, confidential information (witnesses, facts, etc) can be subpoenaed or ordered by judge, would have to reveal it • Duty of Candor to 3rd parties • Duty of regarding officer of the court o Have a duty to the justice function of the court o Duty to client first • Duty of regarding no contact o Talking to witnesses but they have a lawyer, can't contact them

Missouri v. Frye

• Duty to communicate o Plea bargain offers o All relevant matters • Duty to competent • Plea deal is put on table • 2nd Prong is real issue o Whether outcome would have been different • Probablity of whether have accepted the earlier plea (by comparing the pleas) AND the offer would not have been withdraw or the judge would not have agreed • Reasonable Probability o ∆ must show not only a reasonable probability that he would have accepted the lapsed plea but also a reasonable probability that the prosecution would have adhered to the agreement and that it would have been accepted by the trial court • Dissent o Plea bargaining • It happens not to be, however, a subject covered by the 6th Amendment, which is concerned not with the fairness of bargaining but with the fairness of conviction SYNOPSIS • The respondent, who pleaded guilty to driving with a revoked license, filed a post-conviction relief petition alleging that his counsel's failure to inform him of a plea offer denied him Sixth Amendment effective assistance of counsel. • A state court denied the post conviction relief petition, but the Missouri Court of Appeals reversed. Petitioner, the State of Missouri, sought review. • The Supreme Court of the United States granted certiorari. FACTS: • After being charged with driving with a revoked license, the prosecutor sent respondent's counsel two plea bargains. • Respondent's counsel did not advise him of the offers, which had expired. • Prior to the preliminary hearing, the respondent was again arrested for driving with a revoked license. The respondent pleaded guilty without an agreement. • On review, the Court reaffirmed that the Sixth Amendment right to effective assistance applied to the entry of a guilty plea. HOLDING: • The Court also held that defense counsel had a duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that might be favorable to an accused; when counsel allowed the offer to expire without advising respondent or allowing him to consider it, counsel did not render constitutionally effective assistance. ANALYSIS: • Under Strickland, however, the respondent had to show prejudice from the ineffective assistance. • The Court concluded that the state appellate court erred by not requiring respondent to show not only a reasonable probability that he would have accepted the lapsed plea, but also a reasonable probability that the prosecution would have adhered to the plea and that the trial court would have accepted it.

Arizona v. Youngblood

• Evidence was in control of the prosecution • Should have been controlled and preserved but wasn't • Adverse inference charge for ∆ • People o Failed to preserve physical evidence • ∆ o Request not applicable • Standard o Bad faith o Failure to preserve o Evidence COULD have been exculpatory • Brief Fact Summary • An individual convicted of child molestation challenged his conviction based on the state's failure to preserve certain evidence. Synopsis of Rule of Law • "[U]nless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law." Facts • Larry Youngblood (the "Respondent") was convicted by a jury in Arizona of child molestation, sexual assault and kidnapping. The Arizona Court of Appeals reversed the Respondent's conviction because the state did not preserve certain semen samples. The Respondent's principal defense at trial was that the boy erred in identifying him as the perpetrator of the crime. "[B]oth a criminologist for the State and an expert witness for respondent testified as to what might have been shown by tests performed on the samples shortly after they were gathered, or by later tests performed on the samples from the boy's clothing had the clothing been properly refrigerated. The court instructed the jury that if they found the State had destroyed or lost evidence, they might "infer that the true fact is against the State's interest." • The Court of Appeals reversed the jury and found "when identity is an issue at trial and the police permit the destruction of evidence that could eliminate the defendant as the perpetrator, such loss is material to the defense and is a denial of due process." Further, the court concluded without implying any bad faith on the part of the defense, that "on the basis of the expert testimony at trial that timely performance of tests with properly preserved semen samples could have produced results that might have completely exonerated respondent." Issue • Does the United States Constitution (the "Constitution") require the state to preserve evidentiary material that may be useful to a criminal defendant? Held • No. The majority first observed that this case required them to address "what might loosely be called the area of constitutionally guaranteed access to evidence." • Pursuant to [Brady v. Maryland] the court observed that in the past it held "the suppression by the prosecution of evidence favorable to the accused 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." • Further, based on [United States v. Agurs] the court observed that it has been held "the prosecution had a duty to disclose some evidence of this description even though no requests were made for it, but at the same time we rejected the notion that a 'prosecutor has a constitutional duty routinely to deliver his entire file to defense counsel.' " • Based on the facts of this case, the majority held that the police did not violate Brady or Agurs. "The State disclosed relevant police reports to respondent, which contained information about the existence of the swab and the clothing, and the boy's examination at the hospital. The State provided respondent's expert with the laboratory reports and notes prepared by the police criminologist, and respondent's expert had access to the swab and to the clothing." • "[U]nless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law." "In this case, the police collected the rectal swab and clothing on the night of the crime; respondent was not taken into custody until six weeks later. The failure of the police to refrigerate the clothing and to perform tests on the semen samples can at worst be described as negligent." Discussion • The court would have disagreed with the Arizona Court of Appeals if they had held "that the Due Process Clause is violated when the police fail to use a particular investigatory tool."

Pretrial Release

• Excessive Bail Clause • Previous bench warrants, bail jumping, • Suspect arrested, taken into custody, booked, file a complaint (sets out the charges against the ∆), determination whether ∆ will be held in custody or released pending trial o Misdemeanors • Often left out if ∆ can post a cash security deposit in an amount specified on a bail schedule o Felonies • Individual remains in custody until he can be brought before a magistrate • Federal courts o An arrested individual must be brought before the nearest available magistrate without unnecessary delay • State o Typically initial arraignment (aka preliminary arraignment, initial presentment, first appearance) within 24 hours of arrest

Scott v. Illinois

• Follows Gideon but only required if RECEIVED a prison sentence • If judge promises no jail time as condition of no lawyer, can never serve time in jail CASE SYNOPSIS Petitioner was convicted of theft and fined $50 after a bench trial. The state appellate court and the Supreme Court of Illinois affirmed his conviction and rejected the petitioner's contention that the Sixth and Fourteenth Amendments to the United States Constitution required that the state provide trial counsel to him at its expense. The petitioner appealed upon a petition for writ of certiorari. CASE FACTS A prison term was authorized but not imposed upon the petitioner. On appeal, the petitioner argued that Argersinger required state provision of counsel whenever imprisonment was an authorized penalty. The state supreme court viewed Argersinger as holding that the states only had to go so far in furnishing counsel to indigent defendants and affirmed petitioner's conviction. DISCUSSION The Court affirmed.. The Court held that Argersinger delimited the constitutional right to appointed counsel in state criminal proceedings and adopted actual imprisonment as the line defining the constitutional right to appointment of counsel. The Sixth and Fourteenth Amendments required only that no indigent criminal defendant be sentenced to a term of imprisonment unless the state afforded him the right to assistance of appointed counsel in his defense. CONCLUSION The Court held that the Constitution did not require a state trial court to appoint counsel where a defendant was charged with a statutory offense for which imprisonment upon conviction was authorized but not actually imposed and affirmed the petitioner's conviction. REASONING: Argersinger did delimit right to counsel: The basis premise of Argersinger is that actual imprisonment, vs. just fines or the mere threat of imprisonment, is the dividing line for the constitutional right to appointment of counsel 6th & 14th Amdts. require only that no indigent criminal D be sentenced to a term of imprisonment unless the State has afforded him the right to assistance of appointed counsel in his defense CONCURRENCE - Powell: Rule adopted by the majority is not required by the Constitution Trial judges will be required to decide in advance of hearing any evidence and before knowing anything about the case whether they chose to impose a sentence of imprisonment DISSENT - Brennan: Plain wording of the 6th Amdt. and the precedents compel the conclusion that the right to counsel extends to all criminal prosecutions, including Scott's Gideon established a categorical right to appointed counsel for indigent accuseds Scott's offense was not "petty," and thus his right to counsel was plainly mandated by the logic of the Court's prior cases, including Argersinger "Actual imprisonment" standard's problems shows that the "authorized imprisonment" standard is superior DISSENT - Blackmun: Counsel should be appointed to indigent Ds whenever a D is prosecuted for a nonpetty criminal offense, one punishable by more than 6 months in jail, or whenever a D is convicted of an offense and is actually subjected to a term of imprisonment

Bordenkircher v. Hayes

• Fully informed • We hold only that the course of conduct engaged in by the prosecutor in this case, which no more than openly presented the ∆ with the unpleasant alternatives of forgoing trial or facing charges on which he was plainly subject to prosecution, did not violate the Due Process Clause of the 14th Amendment Brief Fact Summary • Hayes was indicted on charges of forgery. He and his counsel met with the prosecutor who offered a lesser sentence if he pled guilty. Hayes decided not to plead guilty and the prosecutor asked that he be tried under the Kentucky Habitual Criminal Act. Hayes was found guilty and sentenced to life as a habitual offender. He appealed from this judgment. Synopsis of Rule of Law • It is not vindictive prosecution to charge someone with something they are guilty of. Facts • Respondent, Hayes, was charged with forgery of a check, I the amount of $88.30, an offense which carried a two-to-ten year prison sentence. During plea negotiations, the prosecutor offered to pursue a five year sentence if Hayes would plead guilty. The prosecutor also made it clear that, if Hayes did not, he would seek indictment under the Kentucky Habitual Crime Act because Hayes had two prior felony convictions on his record. Hayes chose not to plead, was found guilty and was sentenced to life in prison. The Kentycky Court of Appeals rejected Hayes objections and he took habeas corpus to the District Court. The Sixth Circuit court of appeals reversed on the ground that the prosecutor's conduct was vindictive. Issue • Whether it is unreasonable for a prosecutor to ask for an enhanced sentence when a defendant refuses to take a guilty plea. Held • Reversed. According to the majority, plea bargaining has an important role in the judicial system and has been accepted by all courts. The prosecutor has a legitimate interesting persuading a defendant to relinquish his or her right to plead not guilty and "threatening a stiffer sentence is permissible and part of any legitimate system which tolerates and encourages the negotiation of pleas." Dissent • Justice Blackmun dissented, noting that the prosecutor's admission that his reason for the new indictment was to discourage the respondent from exercising his right to trial, thus his only reason for asking for an enhanced sentence was in vindication. Justice Powell dissented, maintaining that while the plea-bargaining process is essential to the functioning of the criminal-justice system, it normally affords benefits to defendants as well as to society; in this case respondent was denied any benefits. Discussion • Plea-Bargaining is recognized as a valuable tool for both prosecutors and defense counsel; however, when a defendant chooses not to take a plea, he cannot complain when charged with a crime of which he is guilty. In this case, the defendant was a habitual offender in the eyes of the prosecution and he had a right to bill him as such.

United States v. Thomas

• Gov't attempted to have juror removed • Secrecy of deliberation o Judge is not supposed to be regulating • Eventually removed Juror 5 o Jurors ended up convicting • Juror 5 said not enough substantive evidence for him o Following the law, was upsetting other jurors, but not disqualifiable • CASE SYNOPSIS • Defendants challenged the decision of the United States District Court for the Northern District of New York, convicting defendants on federal narcotics charges involving conspiracy to possess and distribute cocaine and crack cocaine and actual possession and distribution of the substances. After a mistrial was declared, a second trial was held in which defendants were found guilty by the trial jury. CASE FACTS • Ten defendants were charged with conspiracy to possess and distribute cocaine and crack cocaine, and actual possession and distribution of the substances. A superseding indictment added forfeiture counts against defendants. • After a government witness made prejudicial statements on the stand, a mistrial was declared. • A second trial of the same defendants began two days later and the jury returned verdicts of guilty for all defendants, who were thus convicted of related conduct involving violations of federal narcotics laws. • Defendants argued that the trial court abused its discretion when it ordered the dismissal of one of the jurors during the course of jury deliberations. The trial court had based its decision to remove the juror on a finding that the juror was purposefully disregarding the court's instructions on the law because the juror intended to acquit defendants regardless of the evidence of their guilt. DISCUSSION • The appellate court vacated the judgments and remanded for a new trial, finding that the trial court erred in dismissing the juror under Fed. R. Crim. P. 23(b) because the juror may have been following the court's instructions, but was unpersuaded by prosecution's case. CONCLUSION • The appellate court vacated the judgments as to defendants' convictions on federal narcotics charges involving conspiracy to possess and distribute cocaine and crack cocaine and actual possession and distribution of the substances, and remanded the case for a new trial because a juror was improperly dismissed by trial court. Evidence revealed the juror's view on the merits of the case may have been motivated by doubts about defendants' guilt. • If the record evidence discloses any possibility that the request to discharge stems from the juror's view of the sufficiency of the government's evidence, the court must deny the request

Dogget v. United States

• If the government had pursued Doggett with reasonable diligence from his indictment to his arrest, his speedy trial claim would fail • Court seemed to say that extraordinary, unjustified periods of delay need not be accompanied by a specific showing of prejudice • Government's inexcusable oversights of 6 year delay • Government's negligence had caused delay 6 times as long as that generally sufficient to trigger judicial review • Moreover, the presumption of prejudice was neither extenuated, as by the ∆'s acquiescence, nor persuasively rebutted • Dogget had shown a violation of the right to a speedy trial

Plea Bargaining

• In State Court, plea is between judge, ∆ and prosecution • Mandatory Federal Guidelines were held unconstitutional o Now just advisory and frame the analysis as long as they can justify it • Example o Charge → PL 220.16 • CPCS 3rd Degree (B non-violent) • 2-6 min: Indeterminate sentence (2 in jail, 4 in parole) • 8 1/3 - 25 max o Plea Bargain • Can come down 2 levels (only 1 in violent felony) • PL 220.06 • CPCS 5th Degree (D non violent felony) • Probation Minimum • 2-6 Max o Good ∆ attorney tries to go lower • PL 220.03 • CPCS 7th Degree (A Misdemeanor) • Judge is not involved in plea bargaining in Federal Court (Prohibited by Federal Rules of Criminal Procedure) • If bad behavior is discovered in Presentence report, judge doesn't have to accept plea (STATE) • Fully Negotiate Plea → State Courts (NY) • Open Plea → Federal o No promised sentence from judge o Judge is PROHIBITED from being involved in plea bargaining

Santobello v. New York

• Indicted for 2 felony counts • Open Plea • ∆ detrimentally relied on prosecution's plea • Could argue no prejudice because trial judge said not influenced o However, appeal court said that it was unfair • Remand back to lower court o Crazy because it was open plea o Not really getting benefit of promise • Brief Fact Summary • Petitioner brought appeal after he made a plea bargain and was later sentenced to a maximum sentence. Synopsis of Rule of Law • Plea bargains are considered an important part of the judicial process and should not be dismissed. Facts • Petitioner, Santobello, withdrew a not guilty plea to two felony counts and pleaded guilty to a lesser-included offense, after negotiations with a prosecutor. When he appeared for sentencing, several months later, a new prosecutor recommended the maximum sentence and he was sentenced as such. Petitioner attempted to withdraw his guilty plea; however, his conviction was upheld. He appealed. Issue • Whether a guilty plea can be withdrawn post-sentencing when a plea bargaining agreement has been broken. Held • Remanded for re-decision. Justice Burger, for the court, wrote that plea bargaining is an important step in the criminal process and ought not be dismissed. Because he felt it was the realm of the trial court to determine sentencing, the case was remanded to the trial judge to make a determination of either re-sentencing, as per the plea agreement or whether the defendant would be allowed to withdraw his plea. Dissent • Justice Marshall, for the dissent, felt that the majority should have been stronger on the prosecution. When a plea bargain is broken, the defendant should automatically be allowed to withdraw a plea. Concurrence • Justice Douglass concurred, reiterating the judgement: "Where the 'plea bargain' is not kept by the prosecutor, the sentence must be vacated and the state court will decide in light of the circumstances of each case whether due process requires (a) that there be specific performance of the plea bargain, or (b) that the defendant be given the option to go to trial on the original charges." Discussion • This case is very straightforward regarding the deference that ought to be afforded to plea bargains.

Douglas v. California

• Indigent ∆ has right to appeal as long as automatic appeal Brief Fact Summary • Co-petitioners, Meyes and Douglas (the "petitioners"), were jointly represented by a public defender. They were tried and convicted of thirteen felonies in California. The petitioners appealed to the California District Court of Appeal and the California Supreme Court. The United State Supreme Court ("Supreme Court") granted certiorari. Synopsis of Rule of Law. Indigent petitioners are entitled to assistance of counsel in a first appeal of right. Facts. The petitioners were jointly tried and convicted of 13 felonies in a California Court. They were both represented by a single public defender who sought a continuance at the commencement of the trial. That request for continuance was denied. The petitioners dismissed the public defender and then requested a continuance since they were no longer represented. This request was also denied and the petitioners were convicted of thirteen felonies. They each appealed to the California District Court of Appeal and then to the California Supreme Court. The Supreme Court granted certiorari. Issue. At issue was whether assistance of counsel during the first appeal of right is a fundamental right? Held. Indigent petitioners are entitled to appointed counsel at the appellate level. Dissent. Justice Tom Clark ("J. Clark") believes that California's practice of requiring the District Court of Appeal to first review appeals, appointing counsel only in cases where the Court determined there might be a meritorious appeal, satisfies the requirement that the states afford adequate and effective appellate review to all indigent defendants. He does not believe that the Equal Protection Clause of the United States Constitution ("Constitution") nor the Due Process Clause of the Constitution requires the result reached by the majority, especially where it has been shown that the majority of in forma pauperis appeals are frivolous. Justice John Harlan ("J. Harlan") joined by Justice Potter Stewart ("J. Stewart") Opined that this case should be judged solely on Due Process Clause grounds, stating that the Equal Protection Clause of the Constitution is inapposite to the issue. First, discussing the Equal Protection Clause of the Constitution, J. Harlan noted that states are prohibited under the Equal Protection Clause from discriminating between rich and poor in the formulation and application of law; however, the Equal Protection Clause does not prevent the States from adopting laws that, when applied generally, may affect the poor more harshly than the rich. Due Process requirements were satisfied by the California procedure because California's procedure did not deny anyone an appeal. It only denied court appointed counsel as a matter of right in cases in which the appeal clearly had not merit. Ultimately J. Harlan concludes that he cannot agree that the Constitution prohibits a State, in seeking to redress economic imbalances, is prohibited from taking reasonable steps to guard against needless expense. Discussion. The majority reasons that denying an indigent counsel on appeal results in discrimination against the indigent. The Constitution does not tolerate discrimination. California's present system is discriminatory because a person who can afford counsel is able to submit briefs and partake in oral argument before the court makes a decision on the merits. One who cannot afford an attorney has his appeal judged on the merits based upon the bare record from the lower court hoping that pages will reveal blatant injustices. The Supreme Court clarifies that it is dealing only with the first appeal from a criminal conviction and is not making any holdings with regard to discretionary appeals or mandatory review beyond the stage in the appellate process at which the claims have once been presented by a lawyer and passed upon by an appellate court. The court finds that where the merits of the one and only appeal an indigent has as of right are decided without the benefit of counsel, an unconstitutional line has been drawn between rich and poor.

Cruz v. New York

• Interlocking statements o Both made sense o Would have been a Bruton violation but came in anyway because corroborated the other statement and made it more reliable • Trial Court o Keep codefendant statement out normally in Bruton o BUT here, another statement isn't as devastating • Scalia thinks it's more devastating o Bruton rule still exists because • Big issue is allowing the other statements to come in Brief Fact Summary • Eulogio Cruz (Petitioner) was arrested and, along with his brother Benjamin Cruz (co-defendant), tried and convicted of murder for the shooting of a gas station attendant. At trial, the prosecution called a witness who testified that Petitioner had confessed to the murder; the prosecution also introduced evidence of a tape-recorded confession that co-defendant had made to police. Petitioner appealed his conviction to the New York Court of Appeals, which affirmed, and Petitioner, on certiorari, appeals that decision here. Synopsis of Rule of Law • When a co-defendant's confession implicates a criminal defendant, and the co-defendant does not testify at trial, the admission of the confession violates the criminal defendant's rights under the 6th amendment Confrontation Clause, even when the defendant's own confession corroborates the co-defendant's confession and jury instructions are given that instruct the jury to disregard the co-defendant's confession in deciding the criminal defendant's guilt. Facts • Petitioner and co-defendant were friends with two brothers, Noberto Cruz and Jerry Cruz; Jerry Cruz was murdered prior to the murder for which Petitioner was ultimately convicted. Following Jerry Cruz's murder, police questioned Noberto Cruz, who told police of a conversation he had with Petitioner and co-defendant. • Noberto Cruz told police that Petitioner and co-defendant had visited his apartment, and that Petitioner was wearing a bandage stained with blood at the time. According to Noberto, Petitioner told him that he and co-defendant had been involved in a robbing at a gas station the night previous and, when the attendant had pulled a gun and shot Petitioner, co-defendant had killed the attendant. • Police eventually questioned co-defendant about the murder of Jerry Cruz, and although co-defendant denied any involvement with Jerry Cruz's killing, co-defendant voluntarily confessed that he had killed the gas station attendant. Co-defendant later made the same confession on videotape to police, stating that he, Petitioner, Jerry Cruz, and another man had robbed a gas station and that he had killed the attendant after the attendant shot Petitioner in the arm. • At trial, the videotaped confession of co-defendant was allowed into evidence, and the judge instructed the jury that the confession of co-defendant was not to be used in determining Petitioner's guilt. • The prosecution also called Noberto Cruz, who testified about Petitioner's visit to his apartment and the confession Petitioner had made to him about the gas station robbery and the killing of the attendant. Issue • Was it a violation of Petitioner's 6th amendment Confrontation Clause rights for the trial court to allow co-defendant's videotaped confession to be admitted into evidence along with a limiting instruction given to the jury that it was not to use co-defendant's confession in determining Petitioner's guilt? Held • Reversed and remanded. • Yes; Petitioner's 6th amendment Confrontation Clause rights were violated by the admission of co-defendant's tape-recorded confession, despite the fact that Petitioner's own confession "interlocked" with co-defendant's, and despite the limiting instruction given by the trial judge to the jury. • 1227 o Extension of Bruton rule o Anticipates interlocking confessions

Taylor v. Illinois

• Judge worried about falsified testimony • Needs to show good cause for changing witness list • Judge is given power of flow of evidence • Judge usually has a hearing to discuss the witness they are trying to bring in if not on witness list • ∆ is getting punished by the lawyer's bad job Brief Fact Summary • Taylor took appeal after his trial judge refused to allow a witness, who had not been disclosed in pre-trial discovery, to testify. Synopsis of Rule of Law • An accused does not have an unfettered right to have all witnesses admitted, when their testimony proves to be questionable. Facts • Petitioner, Taylor, was convicted of attempted murder, resulting from a street fight in the south side of Chicago in 1981. • On the second day of trial, after the prosecution's two principal witnesses had completed their testimony, defense counsel asked to amend his answer to discovery to include two more witnesses, who had likely seen the "entire incident." • Through examination, it later became evident that defense counsel already knew the identity of the witness and could have introduced it into discovery. • As a means of sanctioning defense counsel for precluding this evidence, the trial judge concluded it was not as trustworthy and precluded the witness from testifying. • Taylor appealed. Issue • Whether refusal to allow an undisclosed witness to testify, after trial had began, violates a defendant's constitutional right to obtain favorable testimony. Held • Affirmed. Dissent • Justice Brennan, for the dissent, maintains that the "compulsory process clause requires courts to conduct a searching substantive inquiry whenever the government seeks to exclude criminal defense evidence." • In this case, the Justice feels, that was not done, and the defendant should not be punished because his attorney did not disclose information pre-trial. • ∆ is getting punished by the lawyer's bad job Discussion • Although the mistake that was committed was actually that of defendant's attorney, when he failed to disclose the witness identity, all defendants cannot compel that all witnesses be heard, especially when their testimony is, at best, doubtful.

United States v. Salamone

• Jurors were prevented from serving on jury for supporting NRA • Not constitutional issue o Presumed bias • No such thing → have to show it! • Not allowed to bounce for cause • CASE SYNOPSIS • Appellant sought review of a judgment of the United States District Court for the Middle District of Pennsylvania that convicted appellant of various firearms violations, alleging that he was deprived CASE FACTS • Appellant was convicted of various firearms violations. DISCUSSION • The court reversed appellant's convictions. • The court held that appellant was denied a fair cross-section of society in appellant's jury. • The court held that the per se exclusion of potential jury members that had a connection with the Nation Rifle Association (NRA) was unconstitutional. • The court held that the shared attitude of the NRA was insufficient to qualify it as a distinctive group in society for purposes of jury exclusion. • The court held that the NRA members were not questioned by the trial court to determine their individual opinions or bias and ability to try appellant's case. CONCLUSION • The court reversed appellant's firearms convictions because appellant was unconstitutionally denied a fair cross-section of society in the jury pool, as members of the Nation Rifle Association were summarily excluded.

Nix v. Whiteside

• Lawyer violated loyalty and confidentiality • ∆ claims ineffective assistance to counsel because lawyer didn't allow to perjure himself • Counsel had the option to let the ∆ take the stand but decline to affirmatively assist the presentation of perjury by traditional direct examination Brief Fact Summary • The defendant and two others went to the victim's apartment looking for drugs. An argument broke out and the defendant ended up inflicting a fatal stab wound to the victim. • Defendant expressed to his attorney that he had to concoct a story the victim having a weapon in order to win on a theory of self-defense. • Defendant's attorney informed him that if he perjured himself on the stand, the attorney would have to inform the court of the deception. Defendant was found guilty of second-degree murder. He petitioned for a writ of habeas corpus and the United States Court of Appeals for the Eighth Circuit granted the writ. Synopsis of Rule of Law • An attorney is precluded from taking steps or in any way assisting the client in presenting false evidence or otherwise violating the law and should admonish the client about his duty to inform the court if the defendant perjures himself on the stand. Facts • Defendant, Whiteside and two others went to Calvin Love's apartment looking for drugs. An argument broke out and Love allegedly told his girlfriend to get "his piece" and then he returned to bed. • According to Whiteside, Love then started to reach under his pillow and moved toward him. In fear of his life, Whiteside inflicted a fatal wound by stabbing Love in the chest. • Whiteside was charged with murder and he initially told his court-appointed attorney that he stabbed Love as the latter was pulling a gun from underneath his pillow. • After further questioning by his attorney, Whiteside told him he had not actually seen a weapon. No guns were found on the premises and none of the individuals there at the time of the incident saw a gun. Defendant's counsel informed him that the existence of a gun was not necessary to establish the claim of self-defense. • Defendant, however, expressed to his attorney that he had to concoct a story about seeing the victim with a weapon in order to win on a theory of self-defense. • Defendant's attorney told him this would amount to perjury and if he perjured himself on the stand, he would inform the court of the deception. o In addition, the attorney indicated he would seek to withdraw from the representation. • At trial, Whiteside testified he knew Love had a gun and believed Love was reaching for a gun when he acted in self-defense. • On cross, Whiteside admitted he had not actually seen a gun. Defendant was found guilty of second-degree murder and he moved for a new trial claiming he was deprived of a fair trial by his lawyer's admonitions not to state he saw a gun. • The Supreme Court of Iowa affirmed the conviction and held that the right to have counsel present all appropriate defenses does not extend to perjury, an attorney's duty to a client does not extend to assisting a client in committing perjury, and the attorney's actions in the instance were required. • Whiteside then petitioned for a writ of habeas corpus and the Court of Appeals granted the writ. Even though the Court of Appeals accepted the findings of the trial judge and the Iowa Supreme Court that trial counsel believed with good cause Whiteside would perjure himself, the court reasoned that an intent to commit perjury when communicated to counsel does not alter a defendant's right to effective assistance of counsel. • Thus, the attorney's admonition to Whiteside constituted a threat to violate the attorney's duty to preserve client privilege. Therefore, the Court of Appeals found that the threatened violation of client confidences breaches the standards of effective representation laid out in Strickland v. Washington. Issue • Does an attorney's admonition to his client that he will inform the court about what he sees as a client's plan to commit perjury violate a defendant's right to effective assistance of counsel under the Sixth Amendment? Held • No. The judgment of the Eighth Circuit Court of Appeals is reversed and habeas corpus denied. • In Strickland, we held that to obtain relief under the Sixth Amendment, the moving party must establish both serious attorney error and prejudice. • Also recognized in Strickland were a counsel's duty of loyalty and the duty to advocate on behalf of the client. These duties, however, are limited to legitimate, lawful conduct compatible with a desire to search for the truth. • Counsel is precluded from taking steps or in any way assisting the client in presenting false evidence. • These principles are codified in the Model Code of Professional Responsibility and the Model Rules of Professional conduct. An attorney's first duty when faced with prospective perjury is to dissuade the client from the unlawful course of conduct. • In light of the accepted norms of professional conduct, Whiteside's attorney did not fail to adhere to reasonable professional standards that would make out a deprivation of the Sixth Amendment. Whiteside did testify and he was only "restricted" or "restrained" from doing so falsely. Concurrence • Justice William J. Brennan concurring in the judgment. o This Court has no constitutional authority to establish rules of ethical conduct for lawyers practicing in the state courts. The Court's essay is pure discourse without the force of law. • Justice Harry A. Blackmun, Justice William J. Brennan, Justice Thurgood Marshall and Justice John Paul Stevens concur in the judgment: o The only federal issue in this case is whether Robinson's behavior deprived Whiteside of the effective assistance of counsel. • Whether an attorney's response to what he sees as a client's plan to commit perjury violates the Sixth Amendment may depend on the following factors: o (1) How certain the attorney is that the proposed testimony is false; o (2) The state of the proceedings at which the attorney discovers the plan; and o (3) The ways in which the attorney may be able to dissuade the client. • The Court's adoption of a set of standards of professional responsibility for attorneys in state criminal proceedings is troubling. The Court's responsibility only extends to ensuring that a state's restrictions don't infringe on a defendant's federal constitutional rights. • Justice John Paul Stevens concurring: o In this case, it is clear that Whiteside intended to perjure himself. His lawyer knew of his intentions and had a duty to both the court and his client to take extreme measures to prevent the perjury from taking place. Discussion • Attorneys who adopt the role of the judge or jury to determine the facts pose a danger of depriving their clients of the zealous and loyal advocacy required under the Sixth Amendment. This lawyer's actions were a proper way to provide his client with effective representation without having to confront the more difficult questions of what a lawyer should do after his client has given testimony the lawyer does not believe

Speedy Trial

• No hard rule on what "speedy" is • 6th Amendment gives right to speedy trial • A speedy trail is more likely to be reliable than a trial years later • Speedy trial issues today almost always come up after a conviction as a grounds for setting aside the conviction o But the remedy is very difficult

Double Jeopardy

• No man is to be brought into jeopardy of his life, more than once, for the same offense - Blackstone • Multiple Trials involving the "same offense"** • Same charges in same trial is not a double jeopardy issue • When Jeopardy attaches o Jury is sworn (or first witness sworn - bench trial) • Mistrial caused by prosecutorial misconduct • Mistrial not based on "manifest necessity" • Example → Hung Jury • Not a double jeopardy issue • ∆'s motion for mistrial "goaded" by π

Ross v. Moffitt

• No obligation for right to counsel in second appeal Brief Fact Summary. This was a consolidated appeal of two separate cases in which indigent defendants were convicted in North Carolina trial courts. Both appealed and were represented by court appointed counsel before the North Carolina Court of Appeals. Each defendant thereafter pursued other discretionary post conviction remedies and were denied court appointed counsel. Synopsis of Rule of Law. The same concepts of fairness and equality, which require counsel in a first appeal of right, require counsel in other and subsequent discretionary appeals. Facts. This case is the result of the consolidation of two separate cases in which an indigent defendant was convicted in the trial court of the respective counties of Mecklenburg and Guilford, North Carolina. Each defendant pursued his appeal of right to the North Carolina Court of Appeals, where each was represented by court appointed counsel. The convictions were affirmed. Each defendant proceeded to pursue discretionary appeals and habeas corpus relief. The Mecklenburg defendant was denied court appointed counsel by the Mecklenburg County Superior Court and habeas corpus petitions in state and federal court. After exhausting all state remedies, the defendant appealed to the Court of Appeals for the Fourth Circuit and then appealed the denial of that Court. The Guilford defendant was permitted to be represented by court appointed counsel in his appeal to the North Carolina Supreme Court. He was, however, denied court appointed counsel in his attempts to seek other post conviction relief. Held. Neither the due process clause nor the equal protection clause require states to appoint counsel to indigent defendants in discretionary appeals or other post conviction relief. The Supreme Court does not believe the Due Process Clause requires appointment of counsel for discretionary appeals because of the fundamental difference between a trial and an appeal. At a trial, the State's purpose is to convert a person presumed innocent to one found guilty beyond a reasonable doubt. At an appeal, it is the defendant who is trying to overturn a finding of guilt. Unfairness here will only result if indigents are singled out by the State and denied meaningful access to the appellate system because of their poverty. This issue is better considered under equal protection analysis. The Equal Protection Clause does not require absolute equality or precisely equal advantages. It does require that the state appellate system be "free of unreasoned distinctions". The question is one of degrees, not one of absolutes. The Supreme Court concludes that the Equal Protection Clause, when interpreted in the context of cases such as the instant case, does not require North Carolina to provide free counsel for indigent defendants seeking discretionary appeal or other post conviction relief. In reaching this conclusion, the Supreme Court analyzes the North Carolina statutes governing discretionary appeals and the function served by discretionary appeals in North Carolina. The Supreme Court concludes that just because a particular service might be of benefit to an indigent defendant, does not mean that the service is constitutionally required.

Brown v. Mississippi

• No other evidence other than their convictions • Right against self incrimination (5th Amendment) • Lower court never mentions it o Wasn't incorporated until the 1960s o Court would have to prove it was incorporated, didn't do that • Argument against incorporating is Federalism • Supreme Court uses Due Process clause → NOT THE 5TH AMENDMENT o Did not want trial by ordeal o Compares to medieval ages o Not drawing on Constitution • Remanded to lower court for retrial o FAILURE ON SUPREME COURT • No enforcement power • Brief Fact Summary • Two individuals were convicted of murder, the only evidence of which was their own confessions that were procured after violent interrogation. Synopsis of Rule of Law • The Fourteenth Amendment Due Process Clause is violated when a confession obtained via physical torture is used to convict a defendant. Facts • The Petitioners were indicted for a murder that occurred on March 30, 1934. The Petitioners were indicted on April 4, 1934, arraigned thereafter and then pleaded not guilty. The Petitioners were found guilty after a trial solely on the basis of their confessions. During the trial, the Petitioners testified that the confessions were untrue and procured after physical torture. The Petitioners appealed to the Supreme Court of Mississippi arguing that their Fourteenth Amendment rights were violated. The Supreme Court of Mississippi affirmed the trial court's judgment. • The Mississippi Supreme Court concluded "(1) that immunity from self- incrimination is not essential to due process of law; and (2) that the failure of the trial court to exclude the confessions after the introduction of evidence showing their incompetency, in the absence of a request for such exclusion, did not deprive the defendants of life or liberty without due process of law; and that even if the trial court had erroneously overruled a motion to exclude the confessions, the ruling would have been mere error reversible on appeal, but not a violation of constitution right." • The state's highest court also observed "[a]fter the state closed its case on the merits, the appellants, for the first time, introduced evidence from which it appears that the confessions were not made voluntarily but were coerced." Issue • "[W]hether convictions, which rest solely upon confessions shown to have been extorted by officers of the state by brutality and violence, are consistent with the due process of law required by the Fourteenth Amendment of the Constitution of the United States[?]" Held • The state argued that pursuant to Twining v. New Jersey the "exemption from compulsory self-incrimination in the courts of the states is not secured by any part of the Federal Constitution". The state also relied on Snyder v. Massachusetts where the Supreme Court of the United States ("Supreme Court") found "the privilege against self-incrimination may be withdrawn and the accused put upon the stand as a witness for the state." The majority disregarded these arguments and observed "[b]ut the question of the right of the state to withdraw the privilege against self-incrimination is not here involved. The compulsion to which the quoted statements refer is that of the processes of justice by which the accused may be called as a witness and required to testify. Compulsion by torture to extort a confession is a different matter." • Further, "[t]he state is free to regulate the procedure of its courts in accordance with its own conceptions of policy, unless in so doing it 'offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.' " However, "the freedom of the state in establishing its policy is the freedom of constitutional government and is limited by the requirement of due process of law." • Here, "the trial equally is a mere pretense where the state authorities have contrived a conviction resting solely upon confessions obtained by violence." Accordingly, "[t]he due process clause requires 'that state action, whether through one agency or another, shall be consistent with the fundamental principles of liberty and justice which lie at the base of all our civil and political institutions." Moreover, "[i]t would be difficult to conceive of methods more revolting to the sense of justice than those taken to procure the confessions of these petitioners, and the use of the confessions thus obtained as the basis for conviction and sentence was a clear denial of due process." • The majority observed, "the trial court was fully advised by the undisputed evidence of the way in which the confessions had been procured. The trial court knew that there was no other evidence upon which conviction and sentence could be based. Yet it proceeded to permit conviction and to pronounce sentence. The conviction and sentence were void for want of the essential elements of due process, and the proceeding thus vitiated could be challenged in any appropriate manner." Discussion • This case illustrates how federal constitutional rights also often times apply to the states through the Fourteenth Amendment Due Process Clause.

THE MISTRIAL DOCTRINE

• Not all trials end in verdict, some end in mistrial or dismissal prior to a formal verdict • Mistrial o Contemplates setting a new trial date for the same charge • Dismissal o Requires the State to refile charges and begin again

Engle Motion

• Police stopping car • DWI

Michigan v. Bryant***

• Police take statement from victim as dying • Can't be admitted as a dying declaration o In Crawford, this would be precluded • Court holds that statement of victim is admissible because it's not testimonial o On-going emergency o Puts it in a Davis category where it is an utterance • Dissent o Declarant was describing person o Should be more like Hammond because not really an emergency Background • Detroit police dispatched to a gas station parking lot, and found Anthony Covington wounded. • Covington told them that he had been shot by Bryant outside Bryant's house. At trial, the officers testified about what Covington said. • Bryant was found guilty of murder. The testimony of the officers was challenged as a testimonial hearsay. Ultimately, the Michigan Supreme Court reversed his conviction, holding that the Sixth Amendment's Confrontation Clause, as explained in Crawford v. Washington, rendered Covington's statements inadmissible testimonial hearsay. Opinion • The United States Supreme Court reversed the Michigan Supreme Court's ruling, and held that the victim's statements were not testimonial and that they were properly admitted at trial. The test the court used was the primary purpose test. That test draws a distinction between statements made to the authorities that are aimed at gathering facts for the purpose of prosecution versus statements made because there is an ongoing emergency. • Court finds plea for help rather than statement of witness after incident already happened o Wasn't conclusive it ended o Ongoing emergency situation • Ongoing emergency because police didn't know where Rick was and still responding o Therefore, non-testimonial

United States v. Agurs

• Prosecution o Failure to disclose • ∆ o No request/inadequate request • Standard o Must create a reasonable doubt where one didn't previously exist o Brief Fact Summary • The prosecutor did not disclose that the defendant's victim had an extensive criminal record. Counsel for the defendant argued that such information would have bolstered a self-defense argument, and sought a new trial. Synopsis of Rule of Law • "The prosecutor's failure to tender [evidence] to the defense did not deprive respondent of a fair trial . . . where it appears the record was not requested by defense counsel" and did not involve perjury, and the trial judge was "convinced of [defendant"s] guilt beyond a reasonable doubt" taking the evidence into consideration within the record, and that "the judge's first hand appraisal of the entire record was thorough and entirely reasonable." Facts • Defendent Agurs ["the Defendant"] was convicted of second-degree murder in the stabbing death of the Victim, James Sewell ["the Victim"]. • On September 24, 1971, the Defendant and the Victim registered at a hotel as man and wife. The Victim had two knives on his person. The Victim's estranged wife testified he had $360 with him as well. • Fifteen minutes later, three hotel employees hear the Defendant screaming for help. Upon forced entry, the employees found the Defendant and the Victim struggling for possession of one of the knives. The Victim had several wounds. The parties were separated and the police were called. • The Victim was DOA. The Defendant had no knife wounds. No money was found in the Victim's personal effects. • Defendant's counsel argued for self-defense. Defendant was nonetheless convicted of second-degree murder. • Three months, later, defense counsel filed a motion for a new trial, as he had discovered that "(1) that [the Victim] had a prior criminal record that would have further enhanced his violent character; (2) that the prosecutor had failed to disclose this information to the defense; and (3) that a recent opinion of the United States Court of Appeals for the District of Columbia Circuit made it clear that such evidence was admissible even if not known to the defendant." Issue • Whether the prosecutor has any constitutional duty to volunteer exculpatory matter to the defense, and if so, what standard of materiality gives rise to that duty Held • No. The Supreme Court distinguished this case from the previous "Brady Rule" upon which the Defendant made its case. "Brady" applied to three specific situations. First, the undisclosed information demonstrates that the prosecutor relied on perjured testimony, and the prosecutor "knew or should have known." Second, the defense makes a pretrial request for specific evidence. Neither of these situations were applicable to the present case. The third situation, however, is a pretrail defense request for any evidence relating to the matter about to be tried. Because such a request "really gives the prosecutor no better choice than if no request is made," and because the prosecutor has a duty to disclose truly exculpatory evidence, the court concluded that "there is no significant difference" between cases in which a general request is made, and in cases, such as this one, where there is no request. With regards to the demands of a fair trial under the Due Process Clause of the Fifth Amendment as applied to the states by the Fourteenth Amendment, the court held that: o (1) "a prosecutor does not violate the constitutional duty of disclosure unless his omission is sufficiently significant to result in the denial of the defendant's right to a fair trial"; o (2) the Constitution does not demand "discovery of everything that might influence a jury," and "the mere possibility that an item of undisclosed information might have aided the defense, or might have affected the outcome of the trial, does not establish "materiality" in the constitutional sense; o (3) the prosecutor's constitutional duty of disclosure is not measured by his "moral culpability or willfulness" and "if the suppression of evidence results in constitutional error, it is because of the character of the evidence, not the character of the prosecutor"; o (4) "the proper standard of undisclosed evidence . . . is that if the omitted evidence creates a reasonable doubt of guilt that did not otherwise exist, constitutional error has been committed." Dissent • The dissent objected to the standard of materiality set forth as it reduces the prosecutor's obligation "to serve justice" to a status of "no special significance"; that a defendant's right to a fair trial is violated if all evidence is not aired and "creates little, if any, incentive for the prosecutor to resolve close questions of disclosure in favor of concealment"; and that the rule "usurps the function of the jury as the trier of fact in a criminal case." Discussion • The proper standard of materiality [of evidence] must reflect our overriding concern with the justice of the finding of guilt. Such a finding is permissible only if supported by evidence establishing guilt beyond a reasonable doubt.

Chapman v. California

• SC Test for Harmless Error o Beyond a reasonable doubt o Court faced the issues of whether a violation of Griffin can ever be harmless and "if so, was the error harmless in this case?" • Griffin held that prosecutors could not comment on the failure of the accused to testify o New standard • Whether the error in question was harmless, whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction. • But the burden of proving that there was no reasonable possibility that the error was harmful, the Court held, should be on the State because it had benefitted from the error o Before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt

Iowa v. Tovar

• SC acknowledged that it has never prescribed any formula or script to be read to a ∆ who states that he elects to proceed without counsel. • SC ruled that when a ∆ seeks to pled guilty without representation of counsel, the trial court must not only inform the ∆ of his right to the assistance of counsel in entering a plea, but must also inform the ∆: "that there are defenses to criminal charges that may not be known by laypersons and that the danger in waiving the assistance of counsel in deciding whether to plead guilty is the risk that a viable defense will be overlooked; and that by waiving his right to a attorney, he will lose the opportunity to obtain an independent opinion on whether, under the facts, and applicable law, it is wise to plead guilty."

Right to have a Co-Defendant's Confession Excluded

• SC sometimes protects a constitutional right by creating a prophylactic rule that, in effect, grants rights not specifically provided in the Constitution • As a co-defendant • Interlocking statements do not allow true cross-examination

Boykin v. Alabama

• SC: "It was error plain on the face of the record, for the trial judge to accept petitioner's guilty plea without an affirmative showing that the waiver was voluntary, knowing, and intelligent; in particular, a court cannot presume a waiver of these three important federal rights from a silent record." • Requires allocution • "Understand you're giving up your right to ..." • Needs to be put on the record • Depending on judge, some might make ∆ say everything they did • Requires some elements of crimes • Presumption that accepting plea and ∆ attorney saying that they explained the rights to their client

Mapp Motion

• Seeking for suppression in violation of 4th Amendment

Motions in limine

• Seeking to limit what prosecution can and cannot do • Ex: limiting prosecution of prior convictions o Propensity evidence o Requests a ruling in advance of trial on the admissibility of a particular category of evidence

Procedural Default - The "Cause and Prejudice" Test

• Should not be impediment if lawyer does not object or preserve an act • Doesn't apply to Brady violations if never knew

United States v. Burr

• So powerful can even compel president CASE SYNOPSIS • Defendant motioned through subpoena duces tecum before United States Circuit Court for District of Virginia to obtain military orders and original letters between General Wilkinson and the United States president; the prosecution argued that the president should not be compelled and presented objections to motion. DISCUSSION • The court held that defendant's rights to subpoenas began upon accusation and that defendant did not have to wait until indictment. • Further, the court held that the U.S. Constitutional Amendment VIII protection provided that defendant could both subpoena and subpoena duces tecum the president, that original copies of the letters were required, and that defendant could subpoena material relating to opposing witnesses. • Finally, the court held that the issue of protecting national security was to be determined after, not prior to, the issuance of the subpoena. • "If, in being summoned to give his personal attendance to testify, the law does not discriminate between the president and a private citizen"

Gray v. Maryland

• Statement clearly implicates Gray • Court holds that Bruton saying "deleted" is insufficient in following Bruton • Richardson scrubs it out completely Brief Fact Summary • Petitioner, Gray, was arrested and tried jointly with Anthony Bell for the murder of Stacey Williams. His conviction was obtained when a confession, by Bell, was used against Gray at trial. Gray sought to have his conviction overturned on the basis of improper admission of evidence. Synopsis of Rule of Law • A Confession of one defendant, in a joined case, cannot be used against another. Facts • In 1993, Bell and Gray were tried jointly for the murder of Stacey Williams. • Bell refused to testify and his confession was entered against him at trial. • According to the Judge's Order, when the confession was read, the name of Gray was to be deleted and, instead the word "deleted" was to be used. • The jury convicted both parties and Gray appealed. • The intermediate appellate court applied Bruton v. United States (391 U.S. 23), which held that a jury should consider a confession only against the confessing codefendant and the introduction of such a confession at a joint trial is a violation of the nonconfessing defendant's sixth amendment right to cross-examine witnesses. • The conviction was later reinstated by the Maryland Supreme Court, and cert was taken to the United States Supreme Court. Issue • Whether the confession of one defendant, whether or not it has been redacted to remove the mention of another defendant, can be used at a trial where both defendants are being tried. Held • In an opinion written by Justice Breyer, the Court held that such a confession was damaging to a defendant and would still lead a jury to suspect that "deleted" actually meant the other defendant who had not confessed. Dissent • Justice Scalia, for the dissent, maintained that extending Bruton to name-redacted confessions will compromise societal interest in convicting those who are guilty. Discussion • The crux of the argument between the majority and the dissent on this opinion is the manner in which the confession should be admitted. • In Bruton's original form, the case only determined that a confession ought not be used against one defendant when his codefendant has confessed; however, Richardson later carved out an exception that said a confession could be used if there was no mention whatsoever of a codefendant. In this case, the confession lies somewhat in the middle and, what the majority rests upon, is that a confession which has been only partially redacted (to remove just the name of the defendant) is just as damning because any reasonable juror would only have to look up to realize what "deleted" meant

McMann v. Richardson

• Still want ability to appeal on search and seizure o Must do this expressly • Federal Rule 11 o Can preserve the appeal CASE SYNOPSIS Petitioner federal government, by certiorari, sought reversal of three separate judgments of the United States Court of Appeals for the Second Circuit, which directed that a hearing be held on habeas corpus petitions filed by respondent prisoners that were previously denied by the district court. CASE FACTS The three prisoners pleaded guilty to various crimes and asserted in habeas petitions that their pleas were motivated by prior coerced confessions. The circuit court found that a plea was not voluntary if it was based upon an involuntary confession. The federal government challenged the prisoners' right to a hearing on their habeas petitions. DISCUSSION The Court held that a prisoner's plea based upon competent advice of counsel was an intelligent plea not open to collateral attack on the basis that counsel may have misjudged the admissibility of the confession. Therefore, whether a plea was intelligent was dependent upon whether counsel's advice was within the range of competence demanded of attorneys in criminal cases. On a plea of guilty, a prisoner was convicted on his own counseled admission in open court, and the prior confession was not a basis for judgment. Thus, the prisoners assumed the risk of ordinary error in his assessment of the law and the facts. The prisoners were bound by their pleas and convictions unless they alleged and proved incompetence of counsel sufficient to establish that the pleas were not knowingly and intelligently made. CONCLUSION The court vacated the judgments and remanded for reassessment of the prisoners' petitions for habeas corpus.

Investigative Grand Jury

• Subpoena o Judicial order o Can compel attendance before a grand jury o Produce documents o Himself (subpoena duces tecum) • Use Immunity o Replaced transactional immunity • Not prosecuted for any one the crimes which relate • Derivative evidence from testimony • Very broad o Immunity granted to a witness in a criminal case that prevents the use of the witness's compelled testimony against that witness in a criminal prosecution. o Can still be prosecuted for case as long as evidence is wholly independent o Either directly or indirectly o Oliver North • Law prohibited any communication with Iranians • Iran-Contra Hearings in the Senate • Oliver North testified in front on Senate • Refused to testify unless got immunity • Got Use immunity • Needed to be WHOLLY independent sources • Immunity o Right under the 5th amendment • Held in contempt if don't show up • Subpoena o Not protected by 5th Amendment because access to records is not testimonial o Overbroad subpoenas are protected from 4th Amendment • Can't refuse on grounds of 1st Amendment o Ex: Taxes

Rule of Lenity

• Subset of the rule of statutory interpretation that construes criminal statutes narrowly • Whenever doubt exists about the number of convictions authorized, the courts should resolve those doubt in favor of lenity o Prince v. United States • A policy of not attributing to Congress, in the enactment of criminal statutes, an intention to punish more severely than the language of its laws clearly imports in the light of pertinent legislative history o Bell v. United States • Judges should treat as one offense all violations that arise from that singleness of thought, purpose, or action, which may be deemed a single impulse.

Case Screening

• Summons v. Arrestable o Ex: NYC small amounts of marijuana • 24 Hours to arraign • Prosecutor also chooses what charges and how many counts • Police are not bound by legal ethical bounds o Not supposed to charge unless probable cause of each element • Mandatory o Not supposed to pursue a case unless sufficient admissible evidence • Much less flexibility when goes through grand jury • Grand Jury o Prosecutors venue o Hear from victim, police officers, witnesses • In NY o ∆ must be allowed to testify if they want to • Only required in Federal courts • Most states don't have it o Most rely on Preliminary Hearings

Huntley motion

• Suppress statements given to law enforcement in a hearing o Failure to give Miranda o Threats/Coercion

Wade Motion

• Suppressing identification evidence • Filed early in investigation • Line ups • Show ups o Permissible in exigent situations (ex: robbery just happened)

Maryland v. Craig

• Swearbility o Young children are not necessarily able to swear because are too young to understand significance • Here, child is still sworn under oath and is subject to cross-examination, just wasn't face to face • Similar to Rape Shield Laws • 37 states have similar laws with one way system • Dissent o Scalia goes back to text and o Not permit prosecution by affidavit • Needs to be live testimony o If we recognize that children's testimony is not accurate, isn't it better to be able to have face-to-face testimony? o CASE SYNOPSIS • The state of Maryland appealed from the order of the Court of Appeals of Maryland that reversed the trial court's rejection of respondent's contention that his right to confrontation under U.S. Constitutional Amendment VI would be violated by permitting testimony of his alleged child sexual abuse victim by means of one-way closed circuit television. CASE FACTS • Respondent was charged with child abuse, first and second degree sexual offenses, perverted sexual practice, assault, and battery. The named victim was a six-year-old girl who attended a kindergarten center operated by respondent. • Before trial, the state sought to invoke a state statutory procedure that permitted testimony of the alleged victim to be received by one-way closed circuit television. • Respondent objected to the procedure on the basis of his right to confrontation under U.S. Constitutional Amendment VI. • The trial court rejected respondent's contention, and respondent was convicted on all counts. • The state court of appeals reversed and remanded for a new trial. DISCUSSION • The court granted certiorari and vacated and remanded, holding that the court of appeals improperly required the trial court observe the child's behavior in respondent's presence and make a specific finding that the child would suffer severe emotional distress if he or she were to testify by two-way closed circuit television. • The court held that the state only needed to show that testimony by one-way closed circuit television was required to protect the child from the trauma caused by testifying in respondent's presence. • "We are therefore confident that the use of the one-way closed circuit television procedure, where necessary to further an important state interest, does not impinge upon the truth-seeking or symbolic purposes of the Confrontation Clause." CONCLUSION • The court granted certiorari and vacated and remanded the court of appeals' order that reversed the trial court's rejection of respondent's allegation that allowing an alleged child sexual abuse victim to testify by closed circuit television would violate his Sixth Amendment right to confrontation because the trial court only had to show that the procedure was required to protect the child from the trauma of testifying in respondent's presence.

Appropriate # of charges

• The prosecutor should not bring or seek charges greater in number or degree than can be reasonably supported with evidence at trial or than are necessary to fairly reflect the gravity of the offense

Blackledge v. Perry

• Trial de novo o New Trial • Presumption of vindictive in that raising charges after an appeal or new trial CASE SYNOPSIS • Petitioner state appealed a judgment from the United States Court of Appeals for the Fourth Circuit, which granted respondent individual's petition for a writ of habeas corpus and reversed his conviction on the grounds that petitioner violated respondent's U.S. Constitutional Amendment XIV due process rights by charging a more serious offense in respondent's de novo retrial pursuant to N.C. Gen. Stat. §§ 7A-290 and 15-177.1. CASE FACTS • Respondent individual exercised his right under N.C. Gen. Stat. §§ 7A-290 and 15-177.1 to a de novo retrial of his misdemeanor conviction. Petitioner state charged a felony offense for the same conduct, and respondent was convicted of that offense. DISCUSSION • Holding that the charging of a more serious offense on the retrial threatened to unconstitutionally deter a defendant's exercise of his right of appeal and that the assertion of this due process right was not barred by a guilty plea, the U.S. Supreme Court affirmed the issuance of the writ. • The Court held that petitioner's asserted discretion to charge a greater offense on retrial carried the same potential for vindictiveness that tainted the prohibited imposition by a judge of a sentence on a conviction after retrial that was greater than that imposed by that judge in the original trial. • Moreover, the Court held that the right impinged by the threat of vindictiveness was the right not to be hauled into court on the greater charge at all. • This was distinguished from other rights that a defendant was precluded from pursuing in a habeas proceeding after the entry of a plea of guilty broke "the chain of events" of the criminal process. CONCLUSION • The Court affirmed the issuance of a writ of habeas corpus, because petitioner's charging a greater offense for the same conduct in respondent individual's de novo retrial of lower court conviction had the potential for vindictive abuse, and could unconstitutionally deter defendants from pursuing their appeal rights, and review by writ of habeas corpus of such a violation of due process was not precluded by respondent's guilty plea.

United States v. Williams

• Tries to extend Brady material to the Grand Jury • Not required to provide exculpatory evidence in GJ o Not part of court system • Don't have right to counsel in GJ • Lot of bill of rights don't apply in GJ • Not in business of weighing evidence o Device in which accusations happen • Double Jeopardy is not attached • Dissent o Should have some say over prosecution and prosecutor o Brief Fact Summary • After being indicted for false representation, John Williams (respondent) filed a Motion for Disclosure of all exculpatory portions of the grand jury transcripts. Upon finding that the prosecution did not present this exculpatory evidence to the grand jury, respondent requested that his indictment be dismissed. Synopsis of Rule of Law • There is no general rule requiring prosecutors to present exculpatory evidence. Facts • Williams was accused of misrepresentation of his character, which was allegedly effected through two financial statements. The prosecutor did not present, however, evidence which showed that Williams was always candid with his financial information. After he was indicted, Williams sought to have that indictment overturned because the grand jury was not presented with all the information by the prosecutor. The District Court overturned the indictment and appeals ensued. Issue • Whether a district court may dismiss an otherwise valid indictment because the Government failed to disclose to the grand jury exculpatory evidence. Held • It is incumbent upon the defendant to present exculpatory evidence. Reversed. Dissent • Justice Stevens, in his dissent, maintained that the Court has recognized that it has the authority to create and enforce limited rules applicable to grand jury proceedings, and the court should instill such rules in order to handle prosecutorial misconduct. Discussion • When a defendant seeks to overturn an indictment, he must bear the burden of proving his own argument.

Taylor v. Louisiana

• Venire o Room in which people are selected for the jury o In LA, women had to fill out documents to get involved • Can still challenge o SC held women could not be excluded from a venire, or jury pool, on the basis of having to register for jury duty, thus overturning Hoyt v. Florida, the 1961 case that had allowed such a practice. Brief Fact Summary • Taylor appealed from conviction when his jury did not include any women, on the basis that Art. 402 of the Louisiana Code of Criminal Procedure, which precluded women from jury service, was unconstitutional. Synopsis of Rule of Law • Jury pools, from which juries are selected, should represent an accurate cross-section of the community. Facts • Taylor, a male, made an objection to the petit jury which convicted him when his jury was made up of all men. His argument was that he was "constitutionally entitled to a jury drawn from a venire constituting a fair cross section of the community and that the jury that tried him was not such a jury by reason of the exclusion of women." The state argued that he was not prejudiced because he was not a member of the excluded class. Taylor too his appeal to the United States' Supreme Court. Issue • Whether a state law, maintaining that women need not serve on juries, is facially unconstitutional and whether a defendant may argue that his right to a fair jury has been affected by such a law. Held • Reversed and Remanded. "if the fair cross-section rule is to govern the selection of juries, as we have concluded it must, women cannot be systematically excluded from jury panels from which petit juries are drawn." Dissent • Justice Rehnquist dissented, noting that the Judgment was grounded more in mysticism than law and the court has failed to prove how the Louisiana system undermines the operation of the law. Discussion • While defendants are not entitled to a jury of any particular composition, the pools of names or venires from which juries are drawn must not systematically exclude distinctive groups in the community.

Appeal

• Very rigorous procedure o Must obtain accurate transcript o Full knowledge of the relevant rules of procedure • Prosecution can appeal if suppression issue • ∆ appealing generally error judge's error in ruling • Can appeal the conviction itself

The Norms of the Criminal Process

• What issues, policies, etc. shifts the balance? • Security v. Individual Rights o Where is the proper balance o Weighs in favor of individual rights • Federalism o What is the role of the federal government • Accuracy • Harmless Error o Not • Fairness o Miranda Rights o Fairness Doctrine • Limited-Government Provisions o Govt should be limited in their duties and involvement • Efficiency**→ Big issue o Harmless Error • Entitled to fair, not perfect trial • Fastest solution tends to be the best solution • Post 9/11 o People were scared and considerations are distorted by fear

Peremptory Challenges

• When prosecution or defense is unsuccessful in convincing the trail judge to remove a prospective juror for cause, that party may exercise one if its peremptory challenges to remove the person whom they do not wish to have sit on the jury • Challenge without explanation o Given by statute or regulation or judge can expand the number • Judge asks questions in Federal court

Crawford v. Washington****

• Wife spoke with police but was legally unavailable to testify o Allowed it to come in anyway • Substantial interlocking/Corroboration • Only one way to determine reliability o Confrontation and cross-examination; NOT an indicia of reliability • Needs to be testimonial in nature o Sworn, affidavits, depositions, prior testimony, or confessions • Absolutist view of Confrontational Clause • 1199 o "In this case, the State admitted Sylvia's testimonial...the Constitution actually prescribes: confrontation." • Brief Fact Summary • The Petitioner, Crawford (the "Petitioner"), brought this action after he was convicted of stabbing a man who tried to rape his wife, when the prosecution was allowed to present her recorded statement against him. Synopsis of Rule of Law • Testimonial statements cannot be used against a defendant who is not given the opportunity to confront the witness giving the statement. Facts • In August of 1999, the Petitioner was arrested for the stabbing of Kenneth Lee ("Mr. Lee"). • The Petitioner admitted he had gone in search of Mr. Lee after Mr. Lee had tried rape his wife. At that time, statements were taken both of the Petitioner and his wife, who witnessed the incident. • Ms. Crawford could not be called to testify against her husband, due to the marriage immunity privilege; however, her testimonial statement was later used against her husband because the facts of her statement and those in his were somewhat different-particularly, whether Mr. Lee was armed and made an advance prior to his stabbing came into question. • The Petitioner was charged with assault and attempted murder, and based on the testimonial, he was found guilty. The Petitioner appealed. Issue • Whether an out of court statement can be used against a defendant to assert the truth of the matter at issue? Held • When statements are testimonial in nature, the defendant must be given the opportunity to confront the witness. In this case, Mr. Crawford could not confront his wife due to marital immunity, and thus her statement should also have been immune from use by the prosecution. Concurrence • While Chief Justice William Rehnquist ("J. Rehnquist") concurred in the judgment, his statements were contrary to a concurrence. In his opinion, J. Rehnquist maintained that the court needs to delineate what a testimonial statement is, in order to make a clear determination as to how it is to be treated. Discussion • This case hangs on the confrontation clause of the Sixth Amendment of the United States Constitution ("Constitution"), which imbues a criminal defendant with the right to confront witnesses against him. While there is an exception to hearsay, which says that testimonial statements can be used against a defendant for impeachment purposes, they cannot be used if the defendant is not given opportunity to confront the witness.

Preparing for Adjudication

• You have the same duty to represent zealously the guilty as well as the innocent • Several strategic decisions must be made in preparing defense o A) Which motions to suppress evidence should be made o B) Whether to move for a change of venue o C) How best to keep your client from facing one trial with multiple counts and multiple defendants (this usually involves moving to sever counts and ∆s) o D) Whether to move for a speedy trial • Issues surround police lying and having more access to the facts

Preventive Definition

•the imprisonment of a person with the aim of preventing them from committing further offenses or of maintaining public order. • About 40% of federal ∆'s get preventative detention

Henderson v. Morgan

∆ sought to have his plea vacated because he did not realize when he pled guilty that an element of second-degree murder was an intention to kill the victim SC: Notice of the true nature or substance of a charge does not always requires a description of every element of the offense but rather only requires notice of critical elements of the offense.