CRIMINAL PROCEDURE

Class Ten

Today’s Topics: Bail

Tensions Constitutional Basis Mechanics Federal Act Miscellaneous Issues

– Capital Murder– Juveniles– Post-Conviction

Today’s Topics: Discovery

Issues D’s Discovery Mechanics Constitutional Duty Preservation of Evidence Prosecutor’s Discovery

CHAPTER SEVEN

BAIL AND PRETRIAL DETENTION

Initial Considerations

What is the purpose of bail pending trial?

Initial Considerations

Suspect/Defendant View– Query: What “costs” are associated with

pretrial detention?– Query: How might pretrial imprisonment

prejudice merits of D’s case? Government/Society View

– Query: What are the chief interests of State?

Constitutional Basis

Article I, Section 9– Gives person in custody right to seek writ of

habeas corpus– “The privilege of the Writ of Habeas Corpus

shall not be suspended, unless when in Cases of Rebellion or Invasion the pubic Safety may require it”

Constitutional Basis

8th Amendment– “Excessive bail shall not be required, …”

Congressional Power to Limit Bail Carlson v. Landon

– Civil action– Denial bail to alien communists awaiting

deportation hearings Rationale: 8th Amd prohibits excessive bail

but does not require bail

State Constitutional Provisions

Many states, including Texas, have added a bail requirement to the State Constitution

Texas Constitution, Article I, Sections 11 and 11(a)– Even where Texas Constitution provides that

bail can be denied, D.A. must do something to trigger

Mechanics: Delivery Methods

Cash Bail– Including bail bondsman

Mechanics: Delivery Methods

10% Plan– D pays directly to Court– Often “assignable”

Personal Bond– “Personal recognizance”

Bondsmen

Important role in determining which defendants are released and which remain incarcerated

Uniquely American Private citizens Traditionally broad discretion to establish

collateral and to retrieve clients

Exercise: Private Bail Bondsmen

Identify a minimum of 3 arguments supporting a private bonding system

Identify a minimum of 3 arguments against a private bonding system

Setting Bail

Judge Discretion– Amount– Criteria

Setting Bail

Schedules Significant Factors

– Seriousness of offense– Strength of prosecutor’s case– Defendant’s prior criminal record

Federal Act: 1966

Purpose: Encourage federal courts to release people without requiring them to go through bail bondsmen

Focus: What amount would reasonably assure trial appearance?

Federal Act: 1966

Missing Element: Did not permit D to be confined pending trial because of perceived risk of general danger to community

Federal Act: 1984

Preference: Release on personal recognizance

Recognizes: Danger to community as factor

Federal Act: 1984

Procedure: Hearing at which judicial officer may determine if any conditions can adequately protect against bail flight risk and community danger

Rebuttable Presumptions: Certain offenses and certain offenders --- no conditions adequate to warrant pretrial release

Conditions: Judge can add least restrictive means necessary

Pretrial Detention vs. Conditional Release Distinct concepts Reno v. Koray

Constitutionality of Federal Bail Reform Act Issue: Is “preventive detention” prior to

trial constitutional?– Due process violation?– 8th Amd violation?

United States v. Salerno

Other Types of Preventive Detention Confinement in mental institution following

verdict of “not guilty by reason of insanity” Civil commitment of sex offender following

discharge of criminal punishment

Miscellaneous Issues

Capital Offenses– Long standing rule that permissible to deny

where proof gives rise to strong presumption of guilt

– Practice Tip: Defense attorney may still want to pursue bail hearing even if release unlikely. Why?

Miscellaneous Issues

Juvenile Offenders– Difficult to establish right to bail

Miscellaneous Issues

Post-Conviction Bail– No constitutional right to bail or release

pending appeal– Federal Bail Reform Act of 1984 frowns on

release– Texas more liberal than federal system, but

limits by punishment assessed and type of crime

CHAPTER EIGHT

DISCOVERY

General Concepts

No general right to discovery in criminal cases– Much more limited than typical civil case

General Concepts

Role of 5th Amd in prosecution’s right to discovery

Limits on D’s right to discovery primarily result of Rules of Procedure, not constitutional limitations

Issues and Tensions

Arguments against discovery by D– Gov’t should not have to share information

when D cannot be compelled to do same– Likely to endanger witnesses– Places D in better position to commit perjury– Promotes fishing expeditions

Issues and Tensions

Arguments favoring discovery by D– Promotes guilty pleas– Best protection against manipulation = early

exposure of facts and enforcement of ethical rules

Issues and Tensions

ABA Position: Administrative advantages– Expeditious resolution– Reduces motions– Minimizes inequities among similarly situated

Ds– Reduces collateral attacks

D’s Discovery: Basics

Extent to which discovery as matter of right exists depends on local law

Judge discretion to order enlarged discovery varies by jurisdiction

Prosecutor discretion– Open file policy– “Discovery by Grace”

Application Exercise: Federal Rule 16 Query: To which of the following items is

D entitled to discovery under Federal Rules?

Application Exercise: Federal Rule 16 Grand Jury Transcript

– Defendant’s own statement– Witness statement after direct testimony at trial– Anything exculpatory

Application Exercise: Federal Rule 16 Names and Addresses of Witness?

Application Exercise: Federal Rule 16 D’s Statements?

– D’s oral statements to undercover agents? Non government agents?

Application Exercise: Federal Rule 16 Co-Defendant Statements?

Application Exercise: Federal Rule 16 Witness Statements?

Application Exercise: Federal Rule 16 D’s Prior Criminal Record?

Application Exercise: Federal Rule 16 Witness’s Prior Criminal Record?

Application Exercise: Federal Rule 16 Evidence Obtained from or Belonging to

D?

Application Exercise: Federal Rule 16 Offense Reports?

Application Exercise: Federal Rule 16 Autopsy Reports? Other Forensic Reports?

– Medical?– Psychiatric?– Blood tests?– Handwriting or fingerprinting comparisons?

Application Exercise: Federal Rule 16 Summary Proposed Expert Witness

Testimony?

Application Exercise: Federal Rule 16 Information Concerning Potential Juror’s

Prior Service?

Mechanics

Motion for Discovery Motion to Suppress Motion to Reduce Bail

Constitutional Duty

Exists independently of obligations imposed by discovery rules

Informed by due process clause [5th Amd] Types of evidence impacted

– Exculpatory information [Brady rule]– False evidence

Continuing duty

Preliminary Exercise

Facts: You are the prosecutor in the Sally Vee aggravated sexual assault case against Johnny Dee. Her claim is that she was raped, at knifepoint, inside of her apartment by a stranger she later identified in a lineup. D has consistently asserted his innocence, offering investigating officers an alibi defense. Court-appointed defense counsel has filed a Motion for Discovery seeking “anything exculpatory” in your files.

Preliminary Exercise

Query: What should you do about disclosing each of the following. Why?

Preliminary Exercise

Houston Police Department lab report on knife found at scene. Results: Inconclusive match with D’s fingerprints.

– Variation One: Investigating officer testifies that various scientific tests were performed and D was linked to scene.

– Variation Two: Prints come back to Bobby Saltzburg.– Variation Three: Prints come back to Bobby but you

were never told that by police.– Variation Four: Sally’s identification of D was tentative

at first, and “positive” only after a suggestive one-on-one show up in court.

Preliminary Exercise

Confession to offense by Crazy Will, a man who routinely confesses to sexual crimes. You do not believe the confession. Police tend to dismiss Willie as a crank.

Preliminary Exercise

Sally Vee’s “rap sheet” indicating that she has had several arrest warrants for hot checks, which each time she cleared up by paying her creditors.

Preliminary Exercise

Fact that underwear worn by Sally Vee at time of offense was misplaced somewhere in hospital emergency room.

Preliminary Exercise

Fact that Sally Vee volunteered to take a polygraph test, the results of which were inconclusive, with the examiner stating his personal opinion that she may have been lying on the questions of consent and prior relationship.

Prosecutor’s Constitutional Duty to Disclose: Recap Trumps any discovery rules of statutes

Prosecutor’s Constitutional Duty to Disclose: Recap False Evidence: Due process violated if gov’t

engages in deliberate deception by presenting testimony known to be perjured– Mooney v. Holohan– Alcorta v. Texas– Napue v. Illinois

Brady Rule: Due process violated if gov’t withholds evidence would would tend to exculpate D or reduce punishment– Brady itself required demand; later modified

Prosecutor’s Constitutional Duty to Disclose: Recap Good Faith: No relevance

– Giglio

Prosecutor’s Constitutional Duty to Disclose: Recap Determining “materiality”: Material only if

there is a reasonable probability that, had the evidence been disclosed, result of proceeding would have been different.– Probability sufficient to undermine confidence

in outcome– United States v. Agurs– United States v. Bagley

Observations from Kyles (1995)

To meet burden, D does not have to show by preponderance that disclosure would have meant acquittal

Do not confuse with sufficiency test No harmless error analysis [Bagley

materiality substitutes] Consider “big picture” of trial rather than

piecemeal

Application to Guilty Pleas

Issues: Does Brady apply to guilty pleas? If so, what is the test for materiality?

Application to Guilty Pleas

United States v. Ruiz (2002) [Supplement]– Impeachment– Information bearing on affirmative defense– Fairness of trial vs. voluntariness of plea

Application to Guilty Pleas

Query: What if withheld evidence tends to establish factual innocence?

Preservation of Evidence

Issue: What duty does gov’t have to keep evidence? Is D denied due process when evidence is destroyed and he looses opportunity for independent analysis?

Preservation of Evidence

California v. Trombetta Arizona v. Youngblood

– Presumption destroyed evidence is exculpatory if destruction done in bad faith

Discovery by Prosecution

Concept: Is it constitutionally permissible to require D to provide material to gov’t?

Discovery by Prosecution

Constitutional provisions implicated– 5th Amd: self-incrimination– 5th Amd: due process [fundamental fairness]

Discovery by Prosecution

Williams v. Florida– Advance notice of intent to claim alibi– Due process analysis– Self-incrimination analysis

Discovery by Prosecution

Reciprocity– Wardius v. Oregon– Federal Rule of Criminal Procedure 16

Discovery by Prosecution

General Discovery– ABA Standards– Illustrative State examples– Texas: insanity; experts

Discovery by Prosecution

Remedies– Taylor v. Illinois [exclusion of defense witness]– Ethical implications

Discovery by Prosecution

Discovery During Trial– United States v. Nobles [work product]