adjudication outline

8/21/2019 Adjudication Outline

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Criminal Procedure: Adjudication

Outline

Pretrial Detention and Release

Assignment One: Bail; Preventive DetentionPages 939-959; Bail Reform Act Rule 46

I. Stack v. Boyle: Excessive Bail

A.

Rule: Excessive Bail: Any amount of bail that is more than necessary to ensure s presence at trial.B. Rule: Factors:

1. Severity of crime (usually longer sentence, so more incentive to flee)

i. Why death penalty cases do not grant bail

2. Evidence of guilt (stronger evidence increases incentive to flee)

3. Wealth (the more one has, the more the court is likely to impose to ensure appearance)

4. Ties to the community (more has, the less incentive one has to flee)

i. Married?

5. Ties outside of the community (more likely one will flee)

i. Foreign harbor?

6. Criminal record (can show that the has shown up before)

C.

Definition: Bond1. The pledging of money or a financial bond that the will forfeit if he fails to show up as requires, or

if he otherwise violates the terms of his release.2. Why we permit it:

i. Presumption of innocence

ii. Resource constraintsiii. The impact on being able to mount a defense

a. Can keep working and can therefore pay for it

b. Be with the family and will lower the burden/stress of a trial

3. When are people released on bail?i. Field releaseissued a summons (never placed in custodial arrest)just a demand that one

appearii. Stationhouse releasenon judicial (often to sober up or cool down)given summons to appear

in court.

iii.Judicial release4 types

a. Releasing on my own recognizance (ROR) Can impose non-financial considerations (e.g. do not break the law)

o BRA - 3142(b) always a condition that commit no new crimes.a. Once it is a condition, it is not only a new crime, but a violation of the first

crimes bail.

b. Do not mess with the evidencec. Surrender passport, stay within x miles or state/city limits

See documento Courts have enormous power to place restrictions on the release

a. E.g. stay away from x person, no contact with crime family

o A serious concern is always to ensure that the integrity of the system is kept intact.

b. Financial conditions Unsecured bonda promise to pay Deposit bondmust pay up front a percentage of the full bond

Full bondput it all up Bail bondsmen

o Not an officer of the court


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o Pledge to the court that the bondsmen will make the payment if the does notappear

a. Some jurisdictions require the use of a bail bondsmen or you sit in jail

o They make people show up for trialhuge financial incentive

o In general, they do not have the same protections of law enforcement, but they often

do not face the same constitutional constraints.

II.Bail Reform Act of 1984 (Breakdown of Sections & Purposes)

3141: General authority to release or detain Ds pending trial or pending sentence and appeal

3142(a): Specifies what that authority is: judicial officer has four choices:

o (1) Release on OR (own recognizance) or unsecured bond

o (2) Release on conditions (financial or otherwise)

o (3) Temporary detention to permit revocation of bail or deportation

o (4) Actual Detention Options themselves laid out in subsections (b), (c), (d), and (e), respectively

(e): Detention allowed only AFTER a hearing

(f): When you can have a hearing (g): What factors are considered at hearing (see above)

(h) and (i) tell what type of order judge must issue

(j): Presumption of Innocenceo Nothing in this section shall be construed as modifying or limiting the presumption of

innocence.

18 U.S.C. 3142(e) (2) In a case described in subsection (f)(1) of this section, a rebuttable presumption arises that no

condition or combination of conditions will reasonably assure the safety of any other person and the

community if such judicial officer finds that

o (A) the person has been convicted of a Federal offense that is described in subsection (f)(1) of this

section, or of a State or local offense that would have been on an offense described in subsection

(f)(1) of this section if a circumstance giving rise to Federal jurisdiction had existed;

o

(B) the offense described in subparagraph (A) was committed while the person was on releasepending trial for a Federal, State, or local offense; and

o (C) a period of not more than 5 years has elapsed since the date of conviction, or the release of the

person from imprisonment, for the offense described in subparagraph (A), whichever is later.III.U.S. v. Salerno: Pre-Trial Detention

A. Rule: In addition to being a flight risk, a suspect may be held prior to trial if he or she is poses a danger

to the community.

1. In order to be detained, hearing is held with counsel present and the court must find by clear and

convincing evidence eitherthat is a flight risk orthat no release conditions will ensure the safety

of the community.

i. Court finds that pre-trial detention is regulatory rather than punitive (for 5A DP Claim)

ii.

Since there is no right to bail, no problem with Congress adding this under the BRA (8A)iii. This is an allocation of the burden of proof, and does not dictate the eventual outcome

(presumption of innocence argument)

a. Slippery Slope: Hendrix v. Kansas: Civil detainment ok after sentence concluded for sexualpredators.

2. This case marks one of the few times were the government is permitted to make a prediction about

future dangerousness

The Charging Decision

Assignment Two: Prosecutorial Discretion; Limits on the Charging PowerPages 961-87


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I. Charging Decision: The Prosecutor Runs the ShowA. US Constitution: Art. II, 3: the executive branch shall take care that the laws be faithfully executed.

B.Factorsinfluencing whether to bring a charge:

1. Strength of the evidencei. Process as punishment

a. The national district attorneys association should file charges that he or she believes

adequately encompass the accuseds criminal activity and which he or she reasonablybelieves can be substantiated by admissible evidence at trial.

b. The ABA says it is unethical to file or continue a case unless you have evidence to support a

conviction.

ii. Jury nullificationa. A factor that can be considered

b. The potential thatdespite the law and facts that create a sound, prosecutable casethe

factfinder is likely to acquit the defendant because of the unpopularity of some factor

involved in the prosecution or because of the overwhelming popularity of the defendant orhis/her cause, is not a factor prohibiting prosecution.

o Does not mean you cannot consider; just says it does not prohibit filing charges.

2.

Seriousness of the crime and impact on the 3. Deterrence

4. s criminal record

5. s cooperation6. presence of non-prosecution alternatives

i. diversion programs, drug treatment, restitution7. impact on the victim

8. prosecution priorities

II.Inmates of Attica Correctional Facility v. Rockefeller:

A. Rule: Courts cannot require a Prosecutor to bring a charge1. Why no Judicial Oversight?

i.

Separation of powerii. Standingiii. Courts are not competent to review charging decision

a. There are many things a prosecutor must decide

iv. Might reveal grand jury informationIII.U.S. v. Batchelder: Selecting the Charge

A. Rule: If two statutes overlap, the P has the choice of under which statute to charge a .

1. Limits: Cannot charge based on discrimination.

IV.Challenges to Prosecution DecisionA. Selective prosecutionequal protection

1. Similarly situated people not prosecuted and

2.

Decision to prosecute based on impermissible criteria (race, religion, 1A)B. Vindictive prosecutiondue process

1. P had bad motive as to this , and2. Similarly situated people not prosecuted

i. Assumed when exercises right to appeal and more charges are added.

ii. Otherwise, it is presumed prosecution acted in good faith.C. Malicious prosecutioncivil action for damages

1. Often 1983 claims

2. Seeking damages for arrest and charge without probable cause


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i. To prevail, must show that there was no probable cause to bring the case in the first place

a. Sometimes called retaliatory prosecutionV.U.S. v. Armstrong: Selective Prosecution Claim: Discovery

A. Rule: In order to compel discovery in a selective prosecution case, a must give credible evidence thatthere is a discriminatory effect motivated by a discriminatory purpose.

1. Discriminatory effecti. Similarly-situated people not being prosecuted

2.

Discriminatory purposei. Disparate impact not enoughii. Because of race, not knowing racial impact

Grand Juries

Assignment Three: Background; SecrecyPages 989-1004; Rule 6

I. Background

A. Basics:

1. 5th

: cant be charged for a felony unless indicted by a grand juryi. does not apply to the states

2.

23 citizensi. will often hear many cases as opposed to a single case

3. two functions:

i. 1) investigate (sword)

ii. 2) screen charging decisions (shield)4. timing: sometimes before arrest, sometimes after arrest (most common)

B. Secrecy

1. Who has been called is secreti.

Cannot retaliate against a witness in a grand jury

a. 18 USC 1513

Includes interfering with employment

C.

Why do we keep it secret? (Rule 6(b)Information Presented to the Grand Jury)1. Prevent target from escaping

2. Prevent target from trying to influence jurors

3. Prevent target from tampering with witnesses

4. Give witnesses a reason to testify fully, without fear that testimony will get out5. Protect the targets reputation

i. Witnesses, however, may report everything that they said or happened

a. First amendment considerationsb. Impractical to keep them quiet

II. In re Sealed Case: The scope of Rule 6(e): Matters Occurring Before the Grand Jury

A. Rule: A Ps statements about his/her investigation implicate Rule 6e only when they directly reveal GJ

matters (with certain exceptions).1. Also covers matters likely to occur; can include discussions of strategy and direction of

investigation.

i. Information actually presented to the GJ is core Rule 6(e) material that is afforded broadestprotection from disclosure.

a. Not everything in a Ps investigation is required to be kept secret it is . . . necessary to differentiate between statements by a prosecutors office with

respect to its own investigation, and statements by a prosecutors office with respect to

a grand jurys investigation, a distinction of the utmost significant.


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Using the word I believe can reflect the belief of Ps; not saying an indictment will be

sought, for example, but that Ps believe it should happen

o This can make the difference

Facts already known to the public Where the general public is already aware of the information contained in the

prosecutors statement, there is no additional harm in the prosecutor referring to such

information

III.

Subpoena PowerA. Can compel:

1. Witnessesto appear and give testimony under oath (subpoena ad testificandum)

i. Categories of Grand Jury Witnesses

a. Target: a person for whom there is believed to be evidence that would lead to an indictmentb. Subject: person who is not a target but against whom evidence may arise that would change

the person into a target

c. Witness: person who has information relevant to GJ, but is neither target nor subject

2. Documents; can compel a witness to produce documents (subpoena deces tecum)B. Limits

1. Witness may notproduce

i.

Privileged communications2. Statutory limits

i. Stored Communications Act 18 U.S.C. 2703

a. Stored emails from service provider Within 180 days of email only be a search warrant After 180 days of email by GJ subpoena if tell customer in advance (exception: if

notice would seriously jeopardy a criminal), otherwise by warrant

b. Data on customers and online session times by GJ subpoena Other information by warrant

IV.Rights of the Defendant

A. 5A; not silence

1.

Can be held in civil contempt for a refusal to answer.i. Civil contempt: fined or put in jail until the conclusion of the GJ term

a. Show Cause Order: If witness fails to testify pursuant to a subpoena, chief judge can issue

this order to a witness requiring the witness to explain why he/she should not be held incontempt. One of 3 things happens when there is civil contempt:

o GJ term ends

o Witness testifies

o Judge gives up and thinks the coercive power is not working

ii. Criminal contempt: persona has willfully refused to obey a court order or engaged in improper

conduct, can be punished even if he is now willing to comply.

a.

This is punishment; not a coercive measure i.e. punishment for past action, not a measure to get the person to perform some action

B.NO right to an attorney

1. Can ask to leave, however, to speak with an attorney, and then re-enteri. Anythingstated in the GJ can be held against the witness.

Assignment Four: Investigations; ImmunityPages 1004-1034; Rules 6, 17

I. U.S. v. Dionisio: Reasonableness of a Subpoena

A. Rule: GJ may subpoena so long as the request is reasonable.


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1. Requiring a person to appear is not a seizure for 4A purposes.

i. At some point, may be unreasonable, but arguments that the subpoena violates the Constitution isa tough argument.

2. BestArgument to Quash: Rule 17(c)(2)

i. on motion by recipient, court may quashor modify the subpoena if compliance would beunreasonable or oppressive.

II. U.S. v. R. Enterprises: Application of Rule 17(C)(2)

A.

Rule: Very difficult to quash even under this rule1. There must be no reasonable possibilitythat the categoryof materials the government seeks will

produce information relevant to the general subject of the grand jurys investigation.

B. Rule: In general, the GJs subpoena power is potent and very broad.

1. Information need only be a link in the chain of evidenceneeded to prosecute a for a federal crime.III.Immunity: Core Idea: In return for information, witness immunized from prosecution.

A. 6002: Says the witness must testify, but no testimony compelled under the order (or any information

directly or indirectly derived from such testimony or other information) may be used against the witness

in any criminal case.

B. 6002: The court shall issue an order requiring testimony. i.e. the judge only plays an administrativerole. The P makes the call whether there will be immunity.

1.

Transactional Immunity: (Immunity by agreementdone by K or agreements)i. The government will not prosecute for the crimes arising from the transaction in question

a. These come from pocket or letter agreements

You give Transaction because

o You want them to be very cooperative

o They have a lot of useful information

a. e.g.. Monica Lewinsky

can be a very broad grant of immunity

2. Use Immunity: (Forced immunity)

i. The government will not use the immunized testimony that provides, directly or indirectly, toprosecute me.

C.

Concerns over immunizing:1. Immunizing the wrong person2. Not sure what the person will give you; want to make sure you are getting a lot

3. Credibility of the witness is hurt by immunization; juries hate it.

D. How to get the info1. Have a proffer session whereby the witness is immunized for that particular time, e.g., queen for

a day letter, and then parties can negotiate afterwards to determine the importance of the testimony.

IV.Kastigar Hearing

A. Occurs when P tries to prosecute a witness who was given immunity1. Heavy burden placed upon the P to demonstrate that there was an independent, legitimate source

of information.

i.

Cannot be directlyor indirectlyrelated to the testimony given by the witness.a. No inevitable source doctrine; onlyindependent source doctrine.

V. U.S. v. Hubbell: Connection between 5A and Subpoena Power (target was immunized)

A. Rule: 5A protects the target of a grand jury investigation from being compelled to answer questions

designed to elicit information about the existence of sources of potentially incriminating evidence.B. Rule: It is not what is written down. That is not protected. But the act of handing it to the prosecution

may be protected.

1. Concern in this case was that the government asked for 13k documents. It was a fishingexpedition. It was a step in the chain of prosecuting the target.


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C. Todays Standard: If government can state with reasonable particularity the knowledge of the

documents, then no Hubbell problem. If government is unaware of the existence of the documents, thenthere is a Hubbell problem.

1. Court was concerned with the fact that this was giving the key to a safe. The government did not

know about these particular documents.i. This was Derivative use of the documents. Cannot do that.

a. If government was previously aware, however, the act of production adds nothing.

Assignment Five: Preliminary Hearings; Grand Jury Screening; Indictment ChallengesPages 1034-54; Rules 5.1, 6

I. Screening the Charge

A. PreTrial Screening

1. Arrest WarrantMagistrates decides if there is probable cause; OR2.

Post-ArrestGerstein Hearing (within 48 hours)Magistrate decides if there is probable cause.

II. The Sequence

A. Option 1

1. ArrestPrelim Hearing(bound over to) Grand JuryB.

Option 2

1. Grand Jury indictmentArrest

III.

Preliminary HearingsA. Mechanics1. Within two weeks if in custody, three weeks if notin custody.

2. Adversarial

i. P must put on case to show PC that committed crime

ii. entitled to counsel

iii.can challenge P case, put on own case

3. Magistrate Judges makes bindover decision

B. Purposes

1. : screening, discovery2. P: perpetuate testimony

3.

Social Perspective: Keeps P from bringing false charges; may make want plea.i. Government almost alwayswins.

C. Rule 5.1: Preliminary Hearing must take place unless

1. waives the hearing

2. is indicted (the important one)

3. govt files an information under Rule 7(b) charging the with a felony

4. govt files an information charging the with a misdemeanor.

i. Note: If no PC found at Prelim, jeopardy does notattach.

a. Reasons a would waive: GJ may find other crimes May help for a plea deal

b.

Reasons a would not waive: may just get the case thrown out make it more difficult on the P

IV.U.S. v. Costello: On what may the GJ rely to indict?

A. Rule: GJ may rely entirely on inadmissible to indict.B. Rule: Indictments that are valid on their face are valid. Period.

1. An Indictment returned by a legally constituted and unbiased GJ like an information drawn by theP, if valid on its face, is enough to call for a trial of the charge on the merits. The 5A requires

nothing more.


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i. Very difficult to review a GJ indictment on the merits

a. Courts do not want mini-trialsb. Courts also want GJs kept separate.

C. Rule: Effect of this is to wipe out challenges on the merits of the evidence. Can only proceed if there

was prosecutorial misconduct, such as perjured testimony.V. Indictment Challenges

A. U.S. v. Williams: Does P have to provide exculpatory evidence?

1.

Rule: P is not required to provide exculpatory evidence to the GJ.B. Bank of Nova Scotia: When there is P misconduct in the GJ and learns beforetrial

1. Rule: Difficult to dismiss indictment: in the absence of demonstrated prejudice to the accused,

grand jury errors are not a basis for dismissing the indictment.

2. Rule: Dismissal is appropriate only if it is established that the violation substantially influenced the

GJs decision to indict, or if there is grave doubt that the decision to indict was free from substantialinfluence of such violations.

i. Need Misconduct andPrejudice

C. US v. Mechanik: Defendants learns of rule 6 violations duringtrial

1. Rule: Once trial begins, errors are harmless (in general).D. Type of Challenges where courts will intervene:

1.

Presenting perjured testimony to GJi. Prosecutor must be knowing or reckless as to falsity

2. Using GJ to uncover civil information rather than criminal

i. Cannot be your intent

3. Telling jurors dont have to agree with everything in the indictment, just critical partsi. Indictment must be approved in its entirety

4. Misstate the law

5. Trying to improperly influence a GJ witness6.

Disclosing GJ information

7. Continuing to investigate after indictment returned

i. Even if one of these takes place, still likely going to lose:

a.

Must show MISCONDUCT and PREJUDICE

Scope of the Prosecution

Assignment Six: Speedy Trial RightPages 1055-1076; See Speedy Trial Act Rule 45

I. Barker v. Wingo: The Balancing Test

A.Rule: The Right to Speedy Trial shall be evaluated under a balancing test weighing the four factors with

an emphasis on #3: (note: none are necessary or sufficient!)1. Length of delay (triggering mechanism)

i. Approximately one year (Doggett Footnote 1)

ii. Courts inclined to permit longer delay for a serious offense

2.

Reason for the delay3. Defendants assertion of the right (failure to do so weights heavily against the defendant);

4. Prejudice to the defendant.

i. Big concern is losing evidence (such as a witness).B.Rule: Court refuses to employ a 1) fixed time limit or a 2) demand rule:

1. To employ a fixed time limit would make the court a legislative body.

2. To employ a demand rule would be inconsistent with Zerbst and Courts approach tofundamental constitutional rights, and would also place the defendants counsel in a bad

position.

C.Rule: The Speedy Trial Right differs from many other constitutional rights:


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1. Delay causes a problem for the community, from suspect being out in the community to

permitting the defendant to manipulate the system2. Can work in defendants favor, such as a witness forgetting events or evidence being lost

3. More vague than other rights; tough to determine when it comes into play.

D.Rule: Why we have the Speedy Trial Right:1. Prevent oppressive pre-trial incarceration;

2. Minimize anxiety and concern of the accused; and

3.

Limit the possibility that the defense will be impaired (most important)II. Doggett v. U.S.: Rule: Presumption of prejudice if delay is excessive.II. Vermont v. Brillon: Failure by state-appointed defense counsel

A. Rule: Failure of state-appointed defense counsel is not grounds for a speedy trial right violation

III. Implications of the Speedy Trial Act: 18 U.S.C. 3161 et seq.A. Rule: In the Federal System, the STA has largely supplanted the 6A as a basis for litigation

1. Act provides specific time limits when certain events must occur.

i. 30 Days - Once the defendant is arrested or served with a summons, prosecution must

file an indictment or an information.a. If no Grand Jury for 30 days, then the Prosecution gets another 30 days.

ii. 30 DaysMust give at least this time period from first appearance to trial.

iii.

70 DaysTime after filing and making public the information or indictment ordefendants first appearance for when the trial must begin (later of the 2)

iv. 90 daysTime for beginning trial if the defendant is continuously detained.

2. Many exceptions - 3161(h)(1-9)

i. Delays caused by unavailability of the defendant or a key witness, transportationneeds, reasonable legal maneuvering by a codefendant, or other proceeding

involving the defendant.

ii. Typically applied were defendant is source of delaya. Sometimes for Prosecution filing motions or interlocutory appeals

iii. If a complicated pretrial process, likely to have delays.

a. e.g. joinder and severance, parties need more time, and includes prep time for

GJ hearings.iv. Continuances: Either party can seek, or judge can grant sua sponte.

a. Need for delay must outweigh defendants interest in speedy trial

b. Not permitted for court congestion or for a failure to prepare diligently.v. Flexibility allowed for meeting the ends of justice.

a. Even delays by open-ended continuances are generally excluded.

B.Rule: Remedy for a STA violation: Dismissal with orwithout prejudice.

1. Note the difference between 6A and STA:i. 6A: Always Dismissed with prejudice

ii. STA: Dismissed with or without prejudice

a. Under STA, may end up just having to wait longer.

C.

Rule: Steps in a STA analysis where Defendant has the burden of showing violation. Prosecution canthen rebut with showing delays are legitimate.

1. Find a start date

i. Arrest, formal charge, first appearance2. Count calendar days

3. Subtract exclusions

IV. Zedner v. U.S.: Prospective WaiverA.Rule: Cannot prospectively waive under STA

V. U.S. v. Lovasco: When does the clock start?

A.Rule: 6A: Indicted or arrested/served summons


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B.Rule: STA: 1) Arrested/summoned (30 days to indictment); or 2) indictment made public or first

apperance, whichever comes later(70 days to trial)

Assignment Seven: Joinder and Severance

I. Joinder: Rule 8:

A.Rule: A court may join offensesif they are

1.

Of the same or similar character; or are2. Based on the same act or transaction; or are3. Connected with or constitute parts of a common scheme or plan.

B.Rule: A court may join defendantsif they are alleged to have participated in the same act or transaction,

or in the same series of acts or transactions, constitute an offense or offenses.C.Rule: FRCP 13: The court may order that separate cases be tried together as though brought in a single

indictment or information if all the offenses and all defendants could have been joined in a single

indictment or information.

1. Leipold mentioned that Rule 13 is not as important as Rule 8.2. Just a procedural mechanism that relieves pressure of when offenses or defendants may be

joined.

D.

Benefits of Joinder:1. If there is less evidence on one, may help you win in both as jury may disregard the other

evidence for the stronger case

2. Time/moneyget it all done at once

3. Maybe increase chances of concurrent sentencingi. Note: Joinder does not statistically affect the outcome of a trial.

E.Potential Prejudice:

1. Jury will infer criminal disposition (halo effect)2. Jury will confuse the evidence

3. Will inhibit from making a defensei. May want to get on the stand to defend against one when you may be open for cross

on the othera. Really need to be able to show that there was a direct conflict; courts are

worried about you changing your mind

F.Likely outcome of motions:

1. Court affirm no severance all the timei. Relevance of trial evidence: if inadmissible, plays a role, but not dispositive.

2. Courts love to use limiting instructions in this situation.

II. Severance: Rule 14A.Rule: If the joinder of offenses . . . appears to prejudice a defendant or the government, the court may

order separate trials of counts, severe the defendants trials, or provide any other relied that justice

requires.

IV. U.S. v. Hawkins: Application of misjoinderA.Rule: Whether joinder was proper is a question of law, and misjoinder is not a constitutional error.

B.Rule: If there is misjoinder, court will reverse unless the error results in no actual prejudice to the

defendant because it had no substantial and injurious effect or influence on determining the jurysverdict.

1. Indicia for determining actual prejudice

i. Whether the evidence of guilt was overwhelming and the concomitant effect of anyimproperly admitted evidence on the jurys verdict;

ii. The steps taken to mitigate the effects of the error;


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iii. The extent to which the improperly admitted evidence as to the misjoinder counts

would have been admissible at trial on the other counts.C.Rule: Courts permit broad joinder for efficiency purposes, but the requirements are not infinitely

elastic.

1. e.g. a mere temporal relationship is not sufficient to establish the propriety of joinder.V. Zafiro v. U.S.: Mutually antagonistic defenses; finger pointing

A.Rule: Severance under Rule 14 should be granted only when there is a serious risk that a joint trial

would compromise a specific trial right of one of the defendants, or prevent the jury from making areliable judgment about guilt or innocence.

1. Court declined to adopt a bright-line rule here. Mutually antagonistic defenses may be

sufficient, but it does not result in automatic severance.

2. Court concerned with the empty chair and being able to point the finger.VI. Gray v. Maryland: Application of Bruton.

A.Rule: When a codefendant confesses and implicates the other defendant, redacting the name or replacing

it with another word is insufficient. Must hold separate trials.

VII. Recap:A.Rule: Two separate arguments.

1. First, argue that there was misjoinder.

2.

Even if there was proper joinder, then argue the resulting prejudice violates Rule 14.B.Rule: When the trial judge gets it wrong:

1. Under misjoinder, can remand for a new trial unless prosecution can show harmless error

2. Under failure to sever, defendant has the burden of showing that the trial judge abused its

discretion.i. Even if severance should have been granted, prosecution can still show harmless error.

a. e.g. overwhelming evidence of defendants guilt.

a. Even a Bruton problem may still be harmless error under this rule.

Right to Counsel

Assignment Eight: Effective Assistance of CounselPages 199-216, 232-41; Rule 44

I. Strickland v. Washington: Ineffective Assistance of Counsel

A. Rule: In order to establish a claim for ineffective assistance of counsel, the must demonstratedeficient performance and prejudice.

1. Prejudice: But for counsels errors, there is a reasonable probability that the result of the proceedingwould have been different.

i. Reasonable Probability: One that undermines the confidence in the outcome.

a. Outcome: Sentence of conviction itself. Normally, must be a specific showing of prejudice (Cronic).

o Cannot argue not enough time with counsel. Must demonstrate how not enough

time led to a specific problem.

b.

Remember:No RIGHT to be offered a plea or to have the court accept it.2. Deficient Performance: The performance prong of Strickland requires a defendant to show that

counsels representation fell below an objective standard of reasonableness.

B. Lockhart v. Fretwell: Even if there is deficient performance based on the current law (e.g. here, error oflaw), if law changes in the interim, court is to use current law.

1. So if it was deficient performance under the old law, but new law makes it moot, then no claim.

C. Lafler v. Cooper: The mere fact that a fair trial ensued does not foreclose a finding of prejudice arisingfrom a plea bargain.

1. D who goes to trial instead of taking a more favorable plea may be prejudiced from either a

conviction on more serious counts or the imposition of a more severe sentence.


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D. Missouri v. Frye: The 6A right to effective assistance of counsel extends to consideration of plea offers

that lapse or are rejected.1. Ds must demonstrate reasonable probability both that they would have accepted the more favorable

plea offer had they been afforded effective assistance of counsel AND that the plea would have been

entered without the prosecutions canceling it or the trial courts refusing to accept it

II. When does the have the right to Effective Assistance of Counsel?1. Trial

2.

Direct appeali. SCOTUS said that 14

thDP adequate way

a. If you screw up the appeal, you still make the claim under Strickland

3. Plea Bargaining (even if there is never a trial, you still this right)

i. BUT, must show reasonable probability that would have refused to plead and would have gone

to trial.a. Example: plead guilty to count and dismissed 3

2-year sentence

o Lawyer did no research into the case

But coplead guilty to count 1, dismissed 2 and 3

o 1 year sentence

ii.

Still not a viable claim; must show that he would have gone to trial.4.

A.NOT

1. Discretionary appeals

2. Post conviction

III.Requirements of counsel:A. Basics:

i. Act like a lawyer

ii. Test the governments case

iii. Duty of loyalty1. no conflict of interest

2.

consult with the client; keep them up-to-date on important mattersiv. strategic decisions are for lawyers

a. this does not mean follow the orders; just keep them informed.

3. Duty to investigate

4. Skillv. Even if you dont do one of these 4 main things, still may not violate prong 1 of Strickland.

a. Courts are to evaluate based on how it was at the time; not hindsight!

B.Never a Strickland Claim: Trial strategy

C. Clearly Meets Prong 1:1. Fail to raise a statute of limitations defense

2. Fail to raise a timely appeal

3.

Inconsistent strategiesi. A valid strategy, however, can be arguing that the court be found guilty on one count as opposed

to the higher counts.

4. Errors of law

i. E.g. failed to introduce mitigation for death penalty; counsel said he did not know he couldintroduce it.

a. Said could not establish intent b/c shot below the waist (Cooper)

D. Time requirement for sentence to be prejudicial:1. Even a few months difference in a sentence is sufficient to constitute prejudice.


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Assignment Nine: Conflict of InterestPages 241-257; Rule 44(c)

I. Types of Ineffective Assistance of Counsel

A. Deficient lawyer (Strickland)

B. Government interference1. Actual or constructive denial of counsel

2. Preventing lawyer from talking to client overnight

i.

Different though than the 10-15 minute recess; SCOTUS said that is ok to bar counsel fromtalking.

ii. Tough to point to what lawyer did wrong in these cases; but govt did something that made it

impossible for the defense lawyer to do the job.

3. Prevent counsel from putting on proper case4. Interference with right to retained counsel

C. Conflict of Interest

II. Cuyler v. Sullivan: The Standard for Conflict of Interest

A. Rule: In order to establish a violation of the 6th

Amendments Right to counsel, a defendant must

demonstrate that an actual conflict of interest adversely affected his lawyers performance.1. This is a two-part test: 1)Actualconflict and 2) adverse effect

i.

Prejudice is notrequired.a. Actual conflict where counsel is actively representing

. . . the possibility of conflict is insufficient to impugn a criminal conviction.

b. Adverse effect: must point to unfavorable decision made because of conflict.

III.Mickens v. Taylor: 44c

A. Rule: Rule 44c requires a judge to inquire if there are joined s, but not if the counsel represented

another in a substantially related matter, even if the court is aware of the prior representation.

IV.Judges Duty to Inquire

A. Before trial: Easier standard

1. If there is an objection, the judge mustinquire.i. Failure to do so results in an automatic reversal (Holloway).

B.

After Trial: More difficult standard1. Constitutional Duty: Inquire only if the judge knew or should have known about potential conflict

(Sullivan).

i. If judge does not inquire, still only reverse if shows an actual adverse consequence resultingfrom the conflict. (Mickens).

V. Rule 44c (would not have affected Sullivan)1. Joint representation

i. (A) Two or more s have been charged jointly under rule 8b or have been joined for trial under

Rule 13; and

ii. (B) The s are represented by the same counsel, or counsel who are associated in law practice.2. Courts responsibility in cases of joint representation: The court must promptly inquire about the

propriety of joint representation and must personally advise each of the right to effectiveassistance of counsel, including separate representation. Unless there is good cause to believe that

no conflict of interest is likely to arise, the court must take appropriate measures to protect each sright to counsel.

3. If judge fails to make inquiry, almost certainly must show an actual conflict that adversely affects

lawyers representation. i.e. gives no separate remedy than the constitution gives under Mickens.

i. Does not mean that the judge does not have to follow the rules; judge must do it.

ii. There is a presumption that the judge will follow the rules.VI.Steps in this analysis:


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A. Step 1:

1. Identify the source of the possible conflict

i. More than 1 represented by a single lawyer (including two lawyers in the same firm)ii. Can be one trial, can be more than one trial

B. Step 2: Ask if objected pretrial

1. If yes, trial judge must inquire and correct (probably give new lawyer) unless there is no evidence ofconflict

i.

If no new counsel given or other correction madecourts of appeals should reverse (Holloway)unless it turns out that there was no conflict on review. i.e. error was harmless.

2. If no, did trial judge still have duty to inquire?

i. Rule 44c: must inquire in all multi-cases

a. Mickens uncoupled duty of inquiry from what must how post trial for reversal

b. s burden lighter only if objected prior to trialc. Otherwise apply Sullivan test.

VII.Notes on self-representationA. Indigent Defendants:

1. Do not get the right to choose their counsel like someone who can afford it

2. Do not have a right to someone who is not licensed

3.

May represent yourself, however, even in a death penalty casei. Right to self-rep is onlya trial right

ii. Courts often appoint standby counsel in tough cases

VIII.Waiver?A. You can waive a conflict (Wheat), but court CAN require a separate lawyer.

1. Even though you make a knowing and intelligent decision to waive, courts have an independent

interest in ensuring the proceedings in front of them are fair.IX.Types of Conflicts: Which Test to apply?

A. Multiple representationSullivan Test

B. s counsel facing other external pressures

1. Counsel may be a witness

2.

Counsel threatened with disciplinary action3. Sullivan sometimes, Strickland sometimes

i. To the extent that there is a question, more courts apply Strickland

C.

s counsel facing conflicting incentives1. Financial incentives

i. e.g. no taking a guilty plea for movie rights.

a. Apply SullivanX. Anders Brief

A. You get a case and you think there is nothing there

1. Permits counsel to seek leave to withdraw; must submit this motion.

i. Need to cite any portion that arguably gives rise to a claim for appeal and let client add own

arguments.a. Courts dont like them. Same amount of work as a regular brief.

Discovery and Disclosure

Assignment Ten: Disclosure by the ProsecutorPages 1135-63; Rule 16, 26.2

I. OverviewA. Discovery: Refers to local rules; e.g. rule 16, must turn over


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B. Disclosure: not a term of art, but refers to the prosecutors pre-trial obligation to turn over certain types

of information based on the constitution.1. Arguments for BroadDiscovery:

i. Trials a search for the truth

ii. Helps give notices of chargesiii. Unequal resourcesiv. Conserves overall resources

v.

Cases more likely to settle2. Arguments for NarrowDiscovery:

i. Facilitate perjury

ii. Witness intimidation and tampering

iii. Can lead to better information

iv. Defense counsel much more likely to accept information given by government as opposed togoing out on his/her own; that information thats out there may be better than what is given.

v. Defense counsel can be busy, so more likely to accept at face value

vi. Unfair to Prosecution (Learned Hand view)

3. Discovery Frameworki. Read the rules: no two systems exactly alike

ii.

Know your judge and local rulesiii. Largely statutes and rules, but a constitutional backdrop

a. 5th

: privilege against self-incrimination

b. 6th

: right to counsel

c. 5th

/14th

: right to due process (Brady)C. Rule 16: Governing rule for discovery in the Federal System

1. What a defendant gets:

i. Own statements

ii. s criminal recordiii. documents and tangible things

iv. reports of examinations and test

v.

expert witness informationa.

Notably, a defendant does NOT get a list of witnesses or witness statements

D. Defendants Statements Rule 16a1

1. Definition of Written or Record:

i. Near contemporaneous, near verbatim

a. If not written or recorded, can get part of the written report containing the substance of thestatement IF the defendant knew he/she was talking to a cop.

2. Gets oral statements IF the defendant knew he/she was talking to a cop.

E. Governments Discovery Obligations1. 16a1d: criminal record

2. 16a1e: documents and objections

i.

Gun, drugs, fraudulent medical bills, crime sceneii. Material to , or govt intends to use in case-in-chief

3. 16a1f: reports of exams and tests

i. Fingerprint / dna

ii. Material to , or govt intends to use in case-in-chief

4. 16a1g: expert witness informationF. Discovery from Government:

1. item within possession, custody, or control

2. P intends to use it in case-in-chief3. Material to preparation of defense


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4. Docs or objects belong to G. What Defendant does notget:

1. Witness names and statementsRule 16a2 (Courts have said that while the rule does not explicitlystate this, this is how they interpret it.)

i. Jencks Act, Rule 26.2

a. Very similar to rule 16 in terms of a statement being nearly verbatim and nearlycontemporaneous.

ii.

Only after witness testifies on direct at trialiii. Rationale: protection witnesses

a. Court may give a continuance to prep

2. Work product (16a2)

i. Material prepared by P or other government agents in connection with the investigation or

prosecution of caseII. Brady v. Maryland: The case

A. Rule: 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.1. In other words, P violates the Due Process Clause by suppressing evidence

i.

This is a Post-Trial challengea. Review of material: Need not ask; but if P says the info is not Brady, very difficult to get a

judge to do an in camera review. Only chance is if you give a specific request for a specific

document.

b. Timing: Must Disclose in time for defendant to make effective use of the evidence at trial.

Brady material is not discovery; can disclose late in the game.

o Would want to turn it over earlier to make the defense think it is not important.III.

U.S. v. Bagley:

A. Rule: Impeachment evidence is Brady material

B. Rule: Regardless of request, favorable evidence is material, and constitutional error results from its

suppression by the government if there is a reasonable probabilitythat, had the evidence been disclosedto the defense, the result of the proceeding would have been different.

1. A showing of materiality does not require demonstration by a preponderance that disclosure of the

suppressed evidence would have resulted ultimately in the s acquittal.

i. The touchstone of Bagleysmateriality aspect is reasonable probability of a different result. Areasonable probability of a different result is accordingly shown when the governments

evidentiary suppression undermines confidence in the outcome of the trial.

C. Rule: This is not a sufficiency test. A need not demonstrate that after discounting the inculpatoryevidence in light of the undisclosed evidence, there would not have been enough left to convict.

D. Rule: If there is constitutional error, no need to apply a harmless-error review.

E. Rule: Suppressed evidence to be considered collectively, not item by item.

1.

Constitution does not demand an open file, and it is not violated every time a prosecutor fails to turnsomething over that may be helpful.

IV.Kyles v. Whitney:

A. Rule: Materiality does not require preponderance, but also requires more than possibility.

1. More than just it could have changed the jurys outcome; it requires a prediction that the jurywouldhave done something different.

V. Prosecutors Duty to See thatJustice is Done

A.Neither side can present perjured testimonyB. P cant allow information known to be false to stand uncorrected (Napue v. Illinois).

1. If you learn that something is false, you must correct that.


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VI.U.S. v. Ruiz: Plea Bargain Discovery

A. Rule: The Prosecution is not required to disclose impeachment information prior to entering into a pleadeal.

1. This does not answer whether other Brady material, such as the ballistics report, must be turned over

ahead of time.

Assignment Eleven: Disclosure by the Defense and SanctionsPages 1119-35; Rule 16

I. OverviewA. Rule 16a2

1. Docs and Objects

i. Docs, data, photos, tangible objects, buildings or places

ii. P must have provided same information on s request

iii.must intend to use the item in his case-in-chief (IMPORTANT)

2. Reports of exams and tests

i. results of reports of any physical or mental exam, scientific tests

ii. intends to use in case-in-chief, or intends to call witness who prepared report3.

Experts

i.

witness opinions, the bases and reasons for those opinionsii. witness qualifications

B. Rule 16b2What the government does notget:1. work product

2. statements made to the or attorney by:

i. ii. Government or defense witness oriii. A prospective government or defense witness

II. Williams v. Florida: Alibi Requirement

A. Rule: The 5th

Amendment does not bar disclosure of an alibi during pre-trial discovery.

1. Wardious v. Oregon: State must have reciprocal requirements for alibi or the state is invalid under

the Due Process Clause.B. Defendants Obligations Pre-Trial

1. Rule 12.1

i. On request of P, must give notice of any alibi

ii. must tell where he was, and witnesses (name, address, phone) who can corroborate

a. In return, the P must then reveal witnesses who will put at crime scene, plus any rebuttal

witnesses If worried about safety, can get protective order to excuse compliance

2. Williams rationale applied to series of affirmative defenses:

i. Rule 12.2notice of intent to claim insanity

ii. Rule 12.3notice of public authority defense

a.

Other defenses: Intoxication Duress Self-defense

III.Sanctions for DefenseRule 16d2

A. What can a judge do if lawyer fails to comply with a discovery order?

1. Continuance (most often used)2. Allow other lawyer to argue to jury about suspicious circumstances of discovery

3. Make evidence inadmissible


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4. Jury instructions

5. Mistrial6. Hold party or lawyer in contempt

7. Dismiss

8. Judge can also use imagination9. Refer to disciplinary committee

IV.Taylor v. Illinois:

A.

Rule: Judge may preclude a witness from testifying for the defense.1. It is not per se unconstitutional (in violation of the 6A), but not recommended.

i. Exception: Rule does notapply to the Defendant.

B. Rule: Court does not have to impose the least serious sanction.

1. Judges are concerned with the following in failures to comply with a discovery order:i. How easy was it to comply?

ii. Good or bad faith by counsel

Guilty Pleas and Plea BargainingAssignment Twelve: Guilty Pleas; Background on Plea BargainingPages 1165-93; Rule 11

I.

ArraignmentRule 10A. An arraignment must be conducted in open court and must consist of:

1. Ensuring that the has a copy of the indictment or information;2. Reading the indictment or information . . . stating the substance of the charge; and then

3. Asking the defendant to plead to the indictment or information. (this is the only thing a has to do.)B. The defendant may waive arraignment with the judges approval

II. Pleas at ArraignmentRule 11a

A. Guilty, no guilty, nolo contendere (no contest)

1. Nolo contendere:

i. does not admit guilt, just does not contest chargesii. Result is virtually same as a guilty plea

a.

Still convicted, still sentenced in same wayb. Difference: not an admission of guilt that can be used in a later civil case.

iii. Requires court permission, not Ps

iv. Court must consider parties views and the publics interest

2. No NGI - just pleads guilty (NGIinsanity)

B. Initial plea of NG can be changed later1. Change of plea hearing

C. Conditional Pleas: Rule 11a2

1. Can plead guilty and preserve issues for appeal2. Requires approval by both the court and the P

D. Plea colloquy: Rule 11b

1.

Court may put under oath2. Court must address personally in open court

3. Before accepting guilty plea, court must ensurei. Knowing

ii. Voluntary

iii. Factual basisIII.Boykin: Rule: Constitutional error without an affirmative showing that the plea is intelligent and

voluntary.

A. Constitutional Protections in play:


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1. 5ASelf-incrimination

2. 6ARight to a fair, public, and speedy trialIV.Requirements for a Valid Guilty Plea

1. Must be knowing[R. 11(b)(1)]

a. Whats the pleading guilty to The nature of the crime to which he is pleading guilty

o More than being told what the crime is; must understand the elements of the crime

to which he is pleading guilty.a. E.g. 2

nddegree murder includes the intent to kill.

Must explain only the critical elementsbut most courts will explain each

element.

Need notinform of potential defenses Must know the minimum and maximum penalties

i. Rights giving up with plea

b. Jury trial

c. Privilege against self-incrimination

d. Right to confront accuserse. Have P prove case beyond reasonable doubt

f.

Right to counsel at trialii. Consequences

g. Max penalty

h. Mandatory minimum

i. Applicability of sentencing guidelinesj. Forfeiture

k. Restitution No need to inform of collateral effects

o But recommended: if the plea is to a felony offense, consider asking the

o Do you understand that a conviction may deprive you of valuable civil rights, such

as the right to vote, the right to hold public office, the right o serve on a jury, and the

right to possess any kind of firearm?o [If not citizen]: do you understand that your plea of guilty may affect your

residency or your status with the immigration authorities?

2. Must be voluntary[R. 11(b)(2)]

i. Government may not coerce a guilty plea, but may induce or encourage one

ii. Must ask personally if threatened or received improper promisesa. Has anyone attempted in any way to force you to plead guilty or otherwise threatened you?

Has anyone made any promises or assurances of any kind to get you to plead guilty (other

than those in the plea agreement)?3. Must have a factual basis[R. 11(b)(3)].

i. Court must have factual finding for each guilty plea

a.

No standardb. Judge just must be convinced that if trial occurred there would be a factual basis

NOT required for no contest plea.

ii. Can come from almost any source

a. Recommended: have the explain and assent to the crime(s) charged.iii. Particular issue in Alford pleas.

V. U.S. v. Dominguez: Overturning a Guilty Plea on grounds that the Judge did not abide by Rule 11

A. Rule: A who seeks reversal of his conviction after a guilty plea, on the ground that the DC

committed plain error under Rule 11, must show a reasonable probability that, but for the error, hewould not have entered the plea.


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1. Note: If judge forgets parts of Rule 11, can search the record to see whether the client was informed

by counsel; look for evidence that there was an explanation.i. Not recommended, but it is a way to avoid a reversal.

VI.U.S. v. Broce: What you lose when you plead guilty

A. Rule: A defendant loses every claim when pleading guilty other than those that both (1) suggest the

government lacks the power to punish the at all and (2) can be resolved without further fact-finding.1. In this case, the defendant waived his right to raise a double jeopardy claim.

2.

Also waive claims like a Miranda violation.VII.North Carolina v. Alford: Alford pleas

A. Rule: A criminal penalty may be imposed via a plea of guilty without an admission of guilt by the

defendant.

B. Rule: Under Rule 11c, courts require a higher standard of a factual basis to ensure that a defendant is

not pleading guilty to a crime that he/she did not commit.1. Primary source of the factual basis is absent (the defendant), so a particularly high standard is

needed.

i. U.S. Attorneys Manual on Plea Bargaining:

a. Avoid except in the most unusual circumstances, even if no plea agreement is involved andthe plea would cover all pending charges . . . can create an appearance of prosecutorial

overreaching.b. We want the jury to figure this out.

Assignment Thirteen: Plea BargainingPages 1193-98, 1206-23, 1246-50; Rule 11

I. U.S. v. Brady: Plea Bargaining is Constitutional

A. Rule: Prosecution may induce a plea through a plea bargain

1. Can encourage or cause, but cannot coercei.

No misrepresentations

ii. No threats

iii.No improper promises

a.

Offer to remove the death penalty ispermissibleII.Plea Bargain Process

A. Parties work out a deal and (typically) reduce to writing

1. Rule 11(c)(1): In return for a guilty plea, P may:

i. Type A: no bring, or dismiss, other chargesii. Type B: recommend, or not oppose, sentence request

a. Cannot withdraw plea

iii. Type C: agree to specific sentence or range (must be approved by court)

a. If judge rejects the deal, is no longer bound to plea guilty and can withdraw pleaiv. Other inducements:

a. Reduce severity of charges

b.

Obtain cooperation from B. Parties go to court

1. Change of plea hearing if previously pled not guilty

C. Reveal terms of agreement in court (r. 11(c)(2))

1. For good cause can be done in cameraD. Court considers whether to accept the plea

1. Type A, C, judge accepts, rejects, defers

2. Type B, judge tells he/she cannot back outi. Not bound by any recommendation; if you do not like it, now is the time to get out. Once I

accept, youre screwed.


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E. Hypos:

1. Argue that you were threatened by someone elsei. PLEA OK: insufficient to get the plea thrown out; NEED STATE ACTION

2. P said had a really strong case and should plea guilty; turns out that he did not have a strong casei. PLEA OK: Maybe unethical, but ok

3. Offer to plead guilty to murder and I will not seek the death penalty; turns out that death penalty notavailable for this crime

i.

PLEA NOT OK: courts have said that lying about legal matters can make a decision to pleadcoercive.

4. Plead guilty or your business will be scrutinized by a grand jury for a long time. Guy is justu a bad

guy, so P wants him to plead and might be vulnerable to an investigation to his business.

i. PLEA OK: even if things are not related to the charge under consideration, as long as the P can

do the act anyways, then its ok.

5. P gives report saying that there were fingerprints everywhere; then confesses. Turns out the report

was fake.

i. PLEA NOT OK: making up physical evidence or reports of physical evidence is sufficient

coercive.6. I will lower the charges to disorderly conduct from soliciting prostitution if you resign from State

Attorney Generali. PLEAMAYBE:

III.Bordenkircher v. Hayes: Prosecutorial Discretion

A. Rule: Prosecution has wide discretion on how to proceed in a plea bargain

1. Court permitted P to reindict on a higher crime when the defendant turned down an offer to pleadguilty to a lesser charge

2. Court says this is not punishing him for exercising his trial right; P is openly presenting the withunpleasant alternatives of forgoing trial or facing charges on which he was plainly subject to

prosecution.

i. Court emphasized that the P had made the defendant aware of what would happen if he did notplea guilty.

IV.

U.S. v. Pollard: Wired or Third-Party PleasA. Rule: Wired Pleas are permissible (e.g. not filing against wife)

1. Requires highest duty of good faith and fair dealing

i. Was there PC to charge the other person with the crime?

ii. Did admit that the plea was voluntary in colloquy?

iii. Was court aware of the tied agreement?V.Newton v. Rumery: Release-Dismissal Pleas

A. Rule: Release-Dismissal Agreements are permissible

1. Factors:

i. Sophistication of ii. Whether the agreement was revealed to judge

iii.

Seriousness of the crimeiv. If was represented by counsel

v. Legitimacy of reason for dismissalB. Rule: (from class): Attorneys may not stipulate to facts they know to be untrue

C. Rule: (from class): Judges may not participate in plea negotiations (Rule 11(c)(1))

VI.Plea Withdrawals: Timing is everythingA.Before court accepts the plea

1. For any reason or no reason (Rule 11(d)(1))

B.After plea accepted but before sentence


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1. Any fair and just reason or

i. If court rejects plea bargain (Rule 11(d)(2))a. Fair and Just reason:

No absolute right to withdraw plea

o Must be more than a change of heart Considerations

o Was rule 11 followed?

o

How much time has passed?C.After sentence

1. Only on direct appeal or collateral attack (Rule 11(d)(3))

2. Rule 11 violationsharmless error applies 11(h)

i. McMann v. Richardson:a. Coerced confessionassume would have been inadmissible at trial

b. Court: plea deal breaks illegality Conviction not based on confession; based on plea.

c. Remedy for : ineffective assistance of counselD. Question: What about the P? Can the P withdraw for any reason or no reason?

1. Uncertain, but in some states say the P can also withdraw as well. i.e. anyone can change their

minds until the court accepts the plea.i. However, both states and the feds just follow through on the deals.

VII.Santobello v. New York: Remedies for Breach of Contract (Plea Deal)

A. Rule: P must keep their promises: When plea rests in any significant degree on a promise or

agreement of P, such that it was part of inducement toplead, the promise must be kept.B. Rule: Failure to keep a promise requires an automatic reversal. (No showing or prejudice reqd)

C. Rule: Plea agreements construed against government.

D. Remedies:1.

Start plea process again or

2. Specific performance

i. Later case: Defendants preference is relevant, but not decisive.

Trials

Assignment Fourteen: The Right to a Jury and Jury SelectionPages 1271-74, 1297-1313; Rules 23-24

I. OverviewA. Constitution: Article III, 2: Trial of all crimes, except in Cases of Impeachment, shall be by Jury; and

such Trial shall be held in the State where the said Crimes shall have been committed . . . .

B. 6th

Amendment: In all criminal prosecutions, the accused shall enjoy the right o a speedy and publictrial, by an impartial jury of the State and district where in the crimes shall have been committed.

C. Duncan v. Lousiana: Rule: Right to a Jury Trial is a Fundament Right

1. Taylor v. Hayes: Right does not apply if imprisonment is six months or less.

i.

Must be a single charge; cannot stack charges.a. Why do we have it today?

We keep it today because it adds credibility to the system; a sense of integrity if it was

just a judge. It also makes a difference for how we try cases. We want lawyers to talkto people in normal people language. You must persuade a normal person why this is

right. We want a lay person judging the credibility of witnesses and evidence.

D. Size of the Jury1. Federal: 12

i. Court can excuse 1 during deliberations without agreement of parties

ii. Parties can stipulate jury of less than 12


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2. State: Between 6 and 12

E. Voting1. Federal: Must be unanimous either for guilt or acquittalRule 31

2. States: can be less than unanimous

i. 10-2 is ok (plurality)ii. 9-3 probably ok (pre-incorporation decision)

a. court says the concept of reasonable doubt is jury wide. Not individual.

Supreme Court has said, however, that only requiring 5 of 6 for a guilty verdict isinsufficient. That crosses the line. If you have six, then you must be unanimous.

F. Waiver: Can waive, but most people do not.

1. Rule 23a: If the is entitled to a jury trial, the trial must be by jury unless

i. the waives a jury trial in writing;

ii. the government consents; andiii. the court approves.

G. Selection Process:

1. All eligible jurors (voters, maybe drivers license)

i. Court has said that it is rational to rely just on voter lists because it shows some interest in civicduty

2.

% goes on Jury Wheeli. Master wheelii. Qualified wheel

3. 30-100 in Jury Pool called to court

4. voir direprocess of eliminationi. not qualified, hardship

ii. challenges for cause

iii.peremptory challenges

a. I get to excuse them because I say soH. Voir Dire Challenges

1. Questioning by the judge

i.

Enormous discretion vested in the judge for conducting voir dire (abuse of discretion)a.

One time where it might work is when there is pretrial publicity

ii. Sometimes have to ask about race

a. When race is inextricably bound to the facts of the case But, not all interracial crime

b. Must ask about race on request in capital case

2. Challenges for cause

i. Enormous discretion vested in the judge (abuse of discretion)a. e.g. if judge accepts or denies reason given by counsel, tough to overturn that decision.

ii. to challenge judges decision, counsel must show actual evidence of bias

a. e.g. crime victim lies; says he/she was not a victim but was; lied to get on the jury.

However, even a person seeking a job in the P was not sufficient; did not show actualbias.

o Need to show that the juror would be unlikely to follow the law and the

instructions given to him/her.

iii. Witherspoon: Capitala. Often called Witherspoon excludables.

People who say they would convict but would never employ the death penalty.

o SCOTUS said someone who refuses to follow the law is grounds for excusing forcause.

II.Batson v. Kentucky: Equal Protection Challenge


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A. Rule: The EPC forbids the prosecutor to challengepotential jurors solely on account of their race or on

the assumption that black jurors as a group will be unable impartially to consider the states case againsta black defendant.

B. Rule: How to proceed on a Batson Challenge:

1. Step 1

i. must show he is a member of cognizable racial group and used peremptories to removemembers of that group

a.

Johnson v. Californiadoesnt take muchii. entitled to rely on fact that peremptories allow P to discriminate against blacks if he/she wants

toa. P cant argue acting in good faith.

iii. Any other circumstances/evidence to show Ps discriminatory motive

a. Johnson v. California: doesnt take much to satisfy this step; judge just has to draw inferenceof discrimination.

If court finds made prima facie case, move to next step2. Step 2

i. Burden shifts to P to explain peremptories; give race-neutral reasonsa.

Most plausible explanations, if believed, will satisfys Ps duty of race-neutral reasons

b.

Judge has great discretion Does nothave to rise to the level of a challenge for cause Does nothave to be persuasive; just has to be race-neutral

o P. 1311Purkett v. Elem: wild hair and a beard. Just permitted it.

a. Court should focus on thegenuineness, not reasonableness. Could argue that in step 3 it was a pre-text.

c. May have a discriminatory effect, but cannot have discriminatory purpose.

Can even strike b/c of the language situation and an interpreter.

3. Burden shifts back to to show pretext

i. Burden always stays with to show intentional discrimination (EP violation).a. Want to be able to say struck that juror but did not strike another juror with the same

characteristic!C. Evolution of Batson:

1. JEB v. Alabama: Genderi. Rule: Cannot strike on the basis of gender.

a. OConners concurrence: That the Court will not tolerateprosecutors racially

discriminatory use of the peremptory challenge, in effect, is a special rule of relevance, astatement about what this Nation stands for, rather than a statement of fact.

ii. Rule: Even if one can prove a stereotype, it is legally irrelevant.

2. Powers v. Ohio: Rule: White defendant has standing to raise a Batson claim for the Batson right

applies to both the defendant and to the prospective jurors.3. Georgia v. McCollum: Rule: State canraise a Batson claim.

i.

There is state action because it takes place in a courtroom, and jurors are the ones who get toraise it.

4. Rivera v. Illinois: Rule: Peremptories are not themselves of constitutional status. As such, theerroneous denial of a peremptory challenge does notlead to an automatic reversal.

i. Leipold: The defendant need notbe the same race as the struck juror.

ii. Leipold: Not limited to criminal cases.

Assignment Fifteen: Influences on the JuryPages 1378-99; Rules 29.1, 31

I. Darden v. Wainright: Improper Commentary in Closings


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A. Rule: When asking whether a prosecutor has improperly argued, must ask whether the commentary so

infected the trial with unfairness as to make the resulting conviction a denial of due process?1. Very difficult standard to overcome

2. Factors for a court to consider:

i. Did P misstate law or evidence?ii. Did argument burden right to remain silent or 4A right to have evidence excluded?

iii. Were Ps comments in response to s comments?

a.

Just b/c the makes an improper statement does not permit the P to do so as well, but it doesmake it more likely that it will be found harmless.

iv. How pervasive were the comments?v. Did trial court give curative jury instructions?

vi. Did defense counsel object?

vii.Strength of the other evidence? (big)II. In closings, the following are unacceptable:

1. attempt to just inflame the jury

2. personal opinions

i. one reason is that juries will think the P knows more than they heard.3. Introduction of issues unrelated to guilt

i.

E.g. dept of corrs at fault4. Reference to excluded evidence5. Misstating the law or the facts

III.Taking the case from the jury

A.No directed verdict from PB. Judgment of acquittal

1. At close of P case, at close of whole case, or after verdict

2. Was evidence insufficient to sustain conviction?

3. If judge grants JoA before verdict, case over.i. No appeal, nothing

4. If judge grants JoA after verdict, P canappeal

IV.

Jury DeliberationsA.

Deadlocked juries

1. Sending the jury back

2. Inquiring about numerical split

i. In fed system, judge cannotaska. Fear is that it would be coercive to those who are in the minority

ii. In states, some can ask

3. Allen (Dynamite) charges:i. Each juror . . . should examine the question submitted . . . with a proper regard and deference to

the opinions of each other . . . and should listen, with a disposition to be convinced, to each

others arguments . . . and consider whether that juror has reached the proper result.

a.

Judge must be very careful not to step over the line4.

If no result, mistrialoccurs

i. Government mayretry the case.

B. Inconsistent verdicts

1. Permissible; no challenge allowed.i. Tolerated because of the possibility of jury nullification

C. Impeaching the verdict

1. May poll the jury2. Fed R. Evidence: 606(b): not going to hear about what went on


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i. A juror may not testify as to any matter or statement occurring during . . . deliberations, or about

the effect of anything on the jurors minds . . . EXCEPTa. That a juror may testify on whether extraneous prejudicial information was improperly

brought to jurys attention, or, whether any outside influence improperly brought to bear on

the jury. i.e. if it is an EXTERNAL influence, can discuss

Internal, not going to impeach the verdict

o

Cant even make the argument! Not that it is okay that they are, e.g., drinking. Youjust cant discuss it.

Appeals

Assignment Sixteen: Appellate Review and Harmless ErrorPages 1565-81; Rule 52

I. Chapman v. California: Constitutional Errors

A. Rule: In order for a court to find a constitutional error harmless, it must find that the error was

harmless beyond a reasonable doubt.1. Arizona v. Fulminate: Rehnquist notes that the Court has recognized that most constitutional errors

canbe harmless.

II.

Error doctrineA. First ask whether it was a structural error.

1. Structural errors: Automatically harmful error.

i. Denial of lawyer, bad reasonable doubt instruction, biased judge

B. If it is a Trial error, then ask whether it was constitutional or non-constitutional.1. Non-Constitutional Error:

i. Standard: Did the error have a substantial and injurious effect or influence in determining jurys

verdict.

a. must show that the error seriously affected fairness, integrity or public reputation ofproceedings.

Burden of proving error: on

Burden on proving error is harmless: Po P demonstrates harmless by the rest of the evidence was enough. How important

was it? How much did it influence the jury?

2. Constitutional Errors: Chapman.

C.Note: Some errors have harm built into them.1. E.g. Brady, Strickland, failure to sever