The most important principle in the practice of criminal law
Respect for integrity of the process
Three Levels of Police Interaction
(1) Consent
(2) Reasonable suspicion
(3) Probable Cause
Justification: Consent
Nature: Voluntary
Scope: Consensual
Justification: Reasonable Suspicion
Nature: Investigate detention
Scope: Brief detention to resolve suspicion of criminal activity
Justification: Probable Cause
Nature: Arrest
Scope: Full custodial detention
Motivation for corrupting the process
Profit, ego, and justification
Motivation for Corrupting the Process - Profit
Greater motivational factor in civil arena
Motivation for Corrupting the Process - Ego
An individual trait and depends on the personality of the individual practitioner
Motivation for Corrupting the Process - Justification
Greater motivational factor in criminal practice
Three Levels of Police Interaction
(1) Voluntary
(2) Investigative Detention
(3) Arrest
Three Levels of Police Interaction: Voluntary
Justification: Consent
Scope: Consensual
Three Levels of Police Interaction: Investigative Detention
Justification: Reasonable suspicion
Scope: Brief detention to resolve suspicion of criminal activity
Three Levels of Police Interaction: Arrest
Justification: Probable cause
Scope: Full custodial detention
Standard of Proof: The Continuum of Certainty
Reasonable suspicion --> Probable cause --> Preponderance of evidence --> Clear and convincing --> Beyond a reasonable doubt (least to greatest)
Reasonable Suspicion
Specific and articulable facts which taken together with rational inferences from those facts reasonably warrant the intrusion
(a) based on whole picture; officers must have PARTICULARIZED AND OBJECTIVE BASIS for suspecting the particular person stopped o
Probable Cause: For Arrest
When police, at the moment of arrest, have knowledge of PARTICULARIZED FACTS AND CIRCUMSTANCES grounded in reasonably trustworthy information and sufficient in themselves to warrant a belief by a prudent person that an offense has been or is being committ
Probable Cause: For Search
Fair probability based on PARTICULARIZED FACTS AND CIRCUMSTANCES grounded in reasonably trustworthy information sufficient for belief by a prudent person that contraband or evidence of a crime will be found in particular place
Preponderance of Evidence
More than 50% likely than not
Beyond a Reasonable Doubt
Government's proof must exclude any reasonable doubt of defendant's guilty
(a) i. Based on reason and common sense after careful and impartial consideration of all of the evidence.
(b) Proof of such a convincing character that a rational person would be w
Phases of Jury Trial
a. Jury selection
b. Preliminary instruction
c. Opening statements
d. Prosecution's case in chief
e. Motions
f. Defendant's case
g. Prosecution's rebuttal
h. Motions renewed
i. Charge conference
j. Instructions to the jury
k. Closing arguments
l. Delibera
Arrest Prior to Formal Charge
(a) Requires a reactive analysis
(b) Triggers a speedy trial clock
(c) Requires a prompt indictment
(d) Consumes time with pretrial motions and discovery
(e) Involves defense attorney early in the proceedings
(f) Usually limits the grand jury role to its
Arrest After Formal Charge
(a) Permits proactive analysis
(b) Utilizes the investigative power of the grand jury
(c) Fosters a working relationship with the investigating agency
(d) Allows for careful organization and presentation of evidence
(e) Creates opportunity for innovative
Gerstein v. Pugh
(a) Challenge to FL's procedures for determining probable cause for pretrial detention
(b) 4th Amendment requires a judicial determination of probable cause to justify extended pretrial detention
(c) 4th Amendment does not compel an immediate determinatio
County of Riverside v. McLaughlin
Judicial review of probable cause for detention (Gerstein) held within 48 hours is presumptively constitutional
US v. Osunde
RULE: 106 days between arrest and first appearance before a magistrate was unnecessary delay
(a) Indictment dismissed with prejudice
To Go to Trial (Preferred Solution)
(1) Personal recognizance
(2) Unsecured bond
(3) Conditional release
Personal Recognizance
Promise to show up
Unsecured Bond
Promise to pay if you don't show up
Conditional Release
1. Property bond
2. Cash bond
3. Corporate surety bond
4. Travel restrictions
5. Reporting requirements
6. Avoid contact with victim or specified witnesses
7. Other limitations
What is the purpose of the preliminary hearing?
To determine whether probable cause exists to believe that the defendant committed the charged offense
What is the real purpose of a preliminary hearing?
To preview the government's case and explore its strengths and weaknesses through limited discovery
Preliminary Hearing: Tactical Advantage
(a) Limited discovery
(b) Possible source of impeachment
(c) Obtaining witness statements
(d) Preserving testimony
(e) Providing a public forum
Right to Speedy Trial: Sources of Right
(a) 6th Amendment
(b) Speedy Trial Act (18 USC 3161-3174)
(c) State statutes
Speedy Trial: First Interval
a. An indictment must be returned or an information filed within 30 days of the arrest
b. If no grand jury meets within that time period, it may be extended for an additional 30 days
Speedy Trial: Second Interval
a. Trial of a defendant charged by information or indictment shall begin within 70 days of filing and making public the information or indictment; or
b. Within 70 days from the date the defendant has appeared before a judicial officer of the court in whic
What events in the criminal justice process signal the applicability of the Speedy Trial Clause?
(a) Arrest and detention
(b) Formal indictment or information
How is the right to a speedy trial generally different from other rights?
(a) Society has a separate interest in providing a speedy trial
(b) Deprivation of the right may work to the defendant's advantage
(c) It resists precise definition
(d) Only remedy available is the dismissal of the charges
Factors to consider when determining whether there has been a speedy trial
(1) Length of delay
(2) Reason for the delay
(3) Defendant's assertion of his right
(4) Prejudice to the defendant
Factors: Length of Delay
It is the triggering mechanism; dependent on the circumstances of the case
Factors: Reason for Delay
a. Tactical advantage
b. Crowded docket
c. Unavailable witness
d. Governmental negligence
Factors: Defendant's assertion of his right
Failure to actively assert his right makes it difficult for the defendant to prevail
Factors: Prejudice to the defendant
a. Oppressive incarceration
b. Anxiety and concern of the accused
c. Impairment of the defense
Fifth Circuit Test for determining whether pre-indictment delay violates due process
(1) Must show that the delay was intentionally brought about by the government in order to gain a tactical advantage (or for some other bad faith purpose); AND
(2) That the improper delay caused actual substantial prejudice to the defense
Zedner v. US
(a) Trial did not begin within 70 days of indictment
(b) Petitioner, at suggestion of trial judge, signed a blanket, prospective waiver of his rights under the Act
Right to Counsel: Two Constitutional Sources
(1) Fifth Amendment
(2) Sixth Amendment
Right to Counsel: Fifth Amendment
(a) Attaches During Custodial Interrogation
(b) Is not offense specific
Right to Counsel: Sixth Amendment
(a) Attaches at initiation of formal adversary proceedings
(b) Is offense specific
Maryland v. Shatzer
(a) Edwards v. Arizona modified
(b) After 14 day break in custody, police may reinitiate contact with a subject who has previously asserted his Miranda rights
US v. Burgest
We hold that where conduct violates laws of separate sovereigns, the offenses are distinct for purposes of the Sixth Amendment right to counsel. Accordingly, Burgest's right to counsel did not attach to his federal charges at the time federal agents quest
Montejo v. Louisiana
(a) Overruled Michigan v. Jackson
(b) Issue: whether passive appointment/acceptance of counsel constitutes an affirmative assertion of the 6th Amend. Right to Counsel triggering protection against any police initiated contact under Jackson
(c) Holding: Co
Edwards and Jackson in relation to Montejo
Both Edwards and Jackson are meant to prevent police from badgering defendants into changing their minds about the right to counsel once they have invoked it, but a defendant who never asked for counsel has not yet made up his mind in the first instance.
Montejo v. Louisiana: Miranda and Edwards
(a) What matters for Miranda and Edwards is what happens when the defendant is approached for interrogation, and (if he consents) what happens during the interrogation - not what happened at any preliminary hearing"
(b) This language appears to give polic
Communications with Persons Represented by Counsel: Ethical Barriers
In representing a client, a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by la
To assert 5th Amendment Protection (3 legged stool)
You will have to show that the material sought is
(1) Compelled;
(2) Incriminating; AND
(3) Testimonial
US v. Doe (3 Legged Stool)
(1) The production of the documents is compelled by the subpoena;
(2) The material contained in the documents and records is incriminating;
(3) The production of the documents and records amounts to testimony as to:
(a) Their existence;
(b) The witness' p
US v. Doe: Contents of Documents Not Privileged
Any grant of use immunity need only protect respondent from the self-incrimination that might accompany the act of producing his business records.
Kastigar v. US
Once a witness is compelled to testify under a grant of immunity, the prosecuting authorities must prove that any evidence introduced in a future prosecution of that witness originated or derived from a source wholly independent of the compelled testimony
There is NO 5th Amendment privilege for:
(a) Corporate records
(b) Public records
Two Principal Functions of Grand Jury
(a) Investigative
(b) Accusatory
Both functions are part of screening process - the determination whether or not the defendant will be called upon to answer formal criminal charges
Secrecy Requirement
(a) Protects the conduct of the investigation
(b) Protects the reputation of the target
Only applies to the prosecution and the grand jurors. Non-government witnesses are free to disclose their part in the proceedings
Use of Hearsay
(a) The nature of the hearsay should be apparent to the grand jury;
(b) Hearsay should not be used to bypass a hostile witness whose first person testimony might have an effect on the grand jury;
(c) An indictment cannot be based upon an unsworn presentat
Can any grand jury violation result in the reversal of a conviction?
(a) The systematic exclusion of grand jurors based on race gives rise to a presumption of prejudice.
(b) That presumption is sufficient to overturn a verdict of guilty
Inherent Advantages: Prosecution
(a) Image
(b) Resources
(c) Case in chief
(d) Rebuttal
(e) Subliminal implication of guilt
Inherent Advantages: Defense
(a) Presumption of innocence
(b) Burden of proof
(c) Unanimity of verdict
(d) No substantive appeal by the government
Peremptory Challenges
(a) No constitutional right to preemptory challenges
(b) Number of peremptory challenges are limited by rule or statute
(c) Challenging party is not required to justify or explain a peremptory strike unless the opposing side claims that the strike was bas
Batson v. Kentucky
Jurisprudence the Court has delineated a three step analysis:
(1) Opponent of the challenge must establish a prima facie case of racial discrimination
(2) Preponenant of the strike must offer a race neutral explanation
(3) Court must weight the explanatio
Subpoenas: Two Forms
(1) Personal appearance (testificandum)
(2) Duces Tecum (May also require a personal appearance) - bring it with you
Subpoenas: Limits on Subpoena Power
(a) Relevancy
(b) Privilege
(c) Unreasonably broad or oppressive
Criminal Subpoena Power
Limited geographically only by jurisdiction
Usual Practice of Subpoenaed Documents
(1) Delivered personally to an agent or through the mail to prosecutor's office
(2) Agent makes a return to the grand jury reporting that the requirements of the subpoena have been met and requesting leave on the foreman to maintain custody of the documen
Separate Sovereigns
Trial for the same offense is not barred if the cases are prosecute by separate sovereigns
Double Jeopardy: Protects
(a) Against a second prosecution for the same offense following acquittal
(b) Against a second prosecution for the same offense after conviction
(c) Against multiple punishments for the same offense
Two Phrases in Double Jeopardy Clause
(a) Twice put in jeopardy
(b) For the same offense
In order for a defendant to successfully plead double jeopardy in bar to a second prosecution, he must establish
(1) That he has been twice put in jeopardy; and
(2) That both times he was placed in jeopardy, it was for the same offense
In order to establish that he has been put in jeopardy, the defendant must establish that
(1) Jeopardy has attached; and
(2) Jeopardy has terminated
Double Jeopardy: Attached
Jeopardy attaches at the point in the proceeding when the defendant faces the risk of a guilty verdict.
What Events Terminate Jeopardy
(a) Acquittal
(b) Conviction
(c) Mistrial
Termination of Jeopardy: Acquittal
(a) Jury verdict (not guilty)
(b) Directed verdict of acquittal (judge's determination)
Exception to Acquitting without Justification
The judge can vacate a jury verdict and enter a directed judgment of acquittal if he finds that, based on the evidence in the record, no rational trier of fact could have convicted.
Government can appeal --> If appeal is successful, jury verdict of guilty
Double Jeopardy: Can a defendant be retried after a successful appeal?
A defendant who successfully appeals his conviction can be tried again on the same indictment because it is a continuation of the original jeopardy, not a second (double) jeopardy
Double Jeopardy: Exception to Exception
Reversals based on insufficiency of the evidence
Double Jeopardy: When Does A Mistrial Terminate Jeopardy?
When the motion for a mistrial is granted over the objection of the defendant, unless "Manifest Necessity" requires a retrial
Manifest Necessity
Bar of double jeopardy does not apply following a mistrial when "taking all circumstances into consideration, there is a manifest necessity for [declaring a mistrial], or the ends of public justice would otherwise be defeated [by not allowing a retrial]
Examples of Manifest Necessity
(a) Hung jury
(b) Behavior of defendant
(c) Withdrawal of defense attorney
(d) Failure of defendant to appear
(e) Inflammatory ads by defendant
Can a Mistrial Granted on Motion of the Defendant Terminate Jeopardy?
Yes, if the motion for a mistrial is occasioned by conduct of the prosecution that was intended to provoke that motion
Twice Put in Jeopardy
(1) Jeopardy must attach
(2) Jeopardy must terminate
Twice Put in Jeopardy: Attach
(a) When jury is sworn OR
(b) When judge begins to hear evidence
Same Offense
Where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses is whether each provision requires proof of a fact which the other does not
Lesser Included Offense
One that has common elements of the greater offense, but does not require proof of all of the elements constituting the greater offense.
Pre Trial Proceedings
(a) Gerstein review
(b) Initial appearance
(c) Detention hearing
(d) Probable cause hearing
(e) bail reduction or revocation
(f) arraignment
(g) motion hearings
Texas v. Cobb (pre-Montejo)
(a) Defendant who, after having been indicted for the burglary of a residence but not for the murders of the home's two occupants, confessed to the murders, was convicted of capital murder and sentenced to death.
(b) The Court of Criminal Appeals reversed
Papchristou v. City of Jacksonville
(a) "Rogues and vagabonds, or dissolute persons who go about begging, common gamblers, persons who use juggling or unlawful games or plays, common drunkards, common night walkers, thieves, pilferers or pickpockets, traders in stolen property, lewd, wanton
Yick Wo v. Hopkins
No reason whatever, except the will of the supervisors, is assigned why they [the complainants] should not be permitted to carry on, in the accustomed manner, their harmless and useful occupation, on which they depend for a livelihood; and while this cons
US v. Armstrong: Summary
(a) If the claim of selective prosecution were well founded, it should not have been an insuperable task to prove that persons of other races were being treated differently than respondents.
(b) We think the required threshold-a credible showing of differ
US v. Armstrong
The requirements for a selective-prosecution claim draw on "ordinary equal protection standards." The claimant must demonstrate :
(1) that the federal prosecutorial policy "had a discriminatory effect" and
(2) that it was "motivated by a discriminatory pu
US v. Armstrong: To establish a discriminatory effect in a race case
The claimant must show that similarly situated individuals of a different race were not prosecuted.
US v. Marion
(a) What events in the criminal justice process signal the applicability of the Speedy Trial Clause?
(i) Arrest and detention
(ii) Formal indictment or information
(b) "[A] formal indictment or information or else the actual restraints imposed by arrest a
Barker v. Wingo: Factors to Consider for Speedy Trial
(a) Length of Delay
(b) Reason for Delay
(c) Defendant's Assertion of His/Her Right
(d) Prejudice to Defendant
Barker v. Wingo: Length of Delay
It is the triggering mechanism; dependent on the circumstances of the case
Barker v. Wingo: Reason for Delay
(a) Tactical advantage
(b) Crowded docket
(c) Unavailable witness
(d) Governmental negligence
Barker v. Wingo: Defendant's Assertion of His/Her Right
Failure to actively assert his/her right makes it difficult for the defendant to prevail
Barker v. Wingo: Prejudice to Defendant
(a) Oppressive incarceration
(b) Anxiety and concern of the accused
(c) Impairment of the defense
Barker v. Wingo: How is the right to a speedy trial generically different from other rights?
(a) Society has a separate interest in providing a speedy trial
(b) Deprivation of the right may work to the defendant's advantage
(c) It resists precise definition
(d) Only remedy available is the dismissal of charges
Sanctions for violation of speedy trial provisions
(a) Violations of statutory speedy trial provisions may be enforced by dismissal with or without prejudice, depending on reasons for delay
(b) Violations of Sixth Amendment speedy trial provision can only be enforced by dismissal with prejudice
When do Adversarial Judicial Proceedings Commence?
[A ] criminal defendant's initial appearance before a judicial officer, where he learns the charge against him, and his liberty is subject to restriction, marks the start of adversary judicial proceedings that trigger attachment of the Sixth Amendment rig
US v. Doe
Compliance with the subpoena tacitly concedes the existence of the papers demanded and their possession or control by the taxpayer. It also would indicate the taxpayer's belief that the papers are those described in the subpoena
US v. Doe: Testimonial Aspects of Act of Production
(a) That the documents exist
(b) That the documents are in his possession
(c) That he believes these documents are the ones described in the subpoena
(d) That the documents are authentic
Fifth Amendment is a Three-Legged Stool
No person shall be compelled. . .in any criminal case to be a witness against himself. . .
US v. Williams: What remedy did the defendant seek?
Dismissal of the indictment for failure to present exculpatory evidence to the grand jury
US v. Williams: What authority does he invoke?
The rule making power of the court
US v. Williams: Can the supervisory authority of the court be exercised to dismiss an indictment
Yes, for violation of rules intended to insure the integrity of the grand jury
US v. Williams: Was the withheld evidence truly exculpatory?
Probably not
US v. Williams: Did it matter in this case?
No, the Solicitor General conceded the exculpatory nature of the evidence
US v. Mechanik
Two agents testified simultaneously before the grand jury
(a) Trial court held that it was a non-prejudicial violation
(b) Fourth Circuit reversed
(c) SCOTUS reinstated the guilty verdict:
(i) Intervening jury verdict vitiated any taint
(ii) Errors not af
US v. Mechanik: Grave Doubt test
Defense must establish that violations substantially influenced the grand jury's decision to indict or that there is "grave doubt" that the decision was free from such influence
US v. McKenzie
Where there is a claim of prosecutorial misconduct, the indictment will be dismissed only upon a showing of actual prejudice to the defendant. This means that the misconduct must be so overbearing to the will of the grand jury that the indictment in effe
Can any grand jury violation result in the reversal of a conviction?
Thus, even if a grand jury's determination of probable cause is confirmed in hindsight by a conviction on the indicted offense, that confirmation in no way suggests that the discrimination did not impermissibly infect the framing of the indictment, and,
Can any grand jury violation result in the reversal of a conviction?: Presumption of Prejudice
(a) Systematic exclusion of grand jurors based on race gives rise to a presumption of prejudice
(b) Presumption is sufficient to overturn a verdict of guilty
Double Jeopardy
Nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb
Double Jeopardy: Attach
(a) When jury is sworn
(b) When judge begins to hear evidence
Crist v. Bretz
(a) Case dismissed after jury was sworn but before witnesses were sworn (Wrong year charged in the date of the information).
(b) Montana statute provided that jeopardy attached when the first witness was sworn. Bretz elevated the federal rule of attachmen
Is a dismissal ever an acquittal?
See slide
Sanabria v. US
(a) Judgment of acquittal that the government argued was really the dismissal of an indictment
Sanabria v. US: The rule barring any appeal of acquittals is:
The most fundamental rule of double jeopardy jurisprudence
Judgment of Acquittal
A defendant is acquitted only when the ruling of the judge, whatever its label, actually represents a resolution in the defendant's favor, correct or not, of some or all of the factual elements of the offense charged. Where the court, before the jury retu
Brown v. Ohio
Conviction of a lesser included offense bars prosecution for the greater offense.
Burks v. US
An appellate reversal [based upon the insufficiency of the evidence] means that the government's case was so lacking that it should not have been submitted to the jury. Since we necessarily afford absolute finality to a jury's verdict of acquittal - no ma
Why do 99.9% of the defendants who plead guilty elect to take that step
(a) Because they are
(b) 95% of felony convictions are obtained by guilty plea
Guilty Plea
(a) Knowing
(b) Intelligent
(c) Voluntary
Guilty Plea: Knowing
In the sense that the defendant is competent - that he is aware of the purpose of the proceeding
Guilty Plea: Intelligent
In the sense that the defendant is informed of (1) the nature of the offense; (2) the rights that he is waiving and (3) the potential consequences of those waivers
Guilty Plea: Voluntary
In the sense that the plea is not the product of any unconstitutional form of coercion (all criminal proceedings are inherently coercive)
North Carolina v. Alford: Alford Plea
Although denying the charge against him, he nevertheless preferred the dispute between him and the State to be settled by the judge in the context of a guilty plea proceeding rather than by a formal trial. Thereupon, with the State's telling evidence and
US v. Pollard
(a) Pollard was charged with delivering national defense info to a foreign government
(b) Wife was charged as an accessory
(c) Government refused to enter plea with wife unless he agreed to plead guilty and cooperate
(d) Pollard entered guilty plea and wa
Mabry v. Johnson
(a) Defendant convicted of burglary, assault, and murder
(b) Arkansas SC vacated murder conviction
(c) Deputy prosecutor offered charge of accessory after a felony murder with a sentence to run concurrent with burglary and assault
(d) When defense called
Santobello v. New York
(a) Plea agreement contained provision that government would make no recommendation regarding sentencing
(b) Case was delayed and there was a new defense counsel and new prosecutor at sentencing hearing
(c) Prosecutor recommended the max statutory sentenc
Hill v. Lockhart
(a) Defense Counsel advised the defendant that he would be eligible for parole after serving one-third of his sentence
(b) Based on his criminal record, he was a previous offender and not eligible for parole until he had served one-half of his sentence
(c
Strickland v. Washington: Two part test
Defendant must show that the (1) counsel's representation fell below an objective standard of reasonableness AND (2) but for counsel's unprofessional errors, the result of the proceeding would have been different
Right to Know
(a) There is no constitutionally guaranteed right to discovery
(b) There are three categories of discovery required by due process
Three Categories of Constitutionally Mandated Discovery
(1) Prior statements of witnesses who testify at trial (Jencks)
(2) Exculpatory evidence (Brady)
(3) Impeachment material bearing on the credibility of witness (Giglio)
Constitutional Lexicon on Discovery
(1) When do I get my Jencks? - Prior statements by your witnesses
(2) What about my Brady? - Where are you hiding the exculpatory evidence
(3) Does this guy have any Giglio? - Surely you promised this lying worm some reward
Brady v. Maryland: Exculpatory Evidence
We now hold that 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.
US v. Agurs: Exculpatory Evidence
(a) The test of materiality in a case like Brady in which specific information has been requested by the defense is not necessarily the same as in a case in which no such request has been made.
(b) We now consider whether the prosecutor has any constituti
US v. Bagley and US v. Agurs
We find the Strickland formulation of the Agurs test for materiality sufficiently flexible to cover the "no request," "general request," and "specific request" cases of prosecutorial failure to disclose evidence favorable to the accused. . .
US v. Bagley: Materiality Standard
(a) The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.
Materiality Standard: Reasonable Probability
Probability sufficient to undermine confidence in the outcome
Giglio v. US: Impeachment
(a) Here the Government's case depended almost entirely on Taliento's testimony; without it there could have been no indictment and no evidence to carry the case to the jury.
(b) Taliento's credibility as a witness was therefore an important issue in the
Impeachment Information
(a) Informant payments
(b) Plea agreements
(c) Personnel actions
Jencks v. US: Prior Statements by Witnesses
(a) Government must provide the defendant with any prior relevant statements and reports by prosecution witnesses relating to the subject matter of their testimony
(b) Jencks decision codified in 18 USC 3500 and in Rule 26.2 of FRCrP
Before Jencks
Defense was required to establish a foundation of inconsistency
Is Discovery Required in Plea Bargaining: US v. Ruiz
In this case, the Ninth Circuit in effect held that a guilty plea is not "voluntary" (and that the defendant could not, by pleading guilty, waive her right to a fair trial) unless the prosecutors first made the same disclosure of material impeachment info
US v. Ruiz
(1) Impeachment information is special in relation to the fairness of a trial, not in respect to whether a plea is voluntary
(2) Court found no legal authority embodied either in the Court's past cases or in cases from other circuits that provides signifi
US v. Conroy
See slide
Does the Defense Have any Discovery Obligation? - Williams v. Florida
(a) Defendant in robbery prosecution was convicted before the Criminal Court of Record for Dade County, Florida, and he appealed.
(b) The District Court of Appeal of Florida, Third District, 224 So.2d 406, affirmed, and defendant obtained certiorari.
(c)
Does the Defense Have any Discovery Obligation? - US v. Nobles
[R]efusal to permit defense investigator to testify about his interviews with prosecution witnesses when defense counsel stated he did not intend to produce investigator's report for submission to be prosecution for inspection at completion of the investi
Does the Defense Have any Discovery Obligation? - Taylor v. Illinois
The Supreme Court, Justice Stevens, held that: (1) Sixth Amendment compulsory process clause may be violated by imposition of discovery sanction that entirely excludes testimony of material defense witness;
(2) compulsory process clause does not create ab
Allen Rule
If you can't show the defendant everything in your file and still convict him, you shouldn't have indicted him in the first place
Inherent Advantages of Prosecution: Resources
(a) If your defendant is a major corporation, you may not enjoy this advantage.
(b) Compare federal and state resources.
(c) Suggest cooperation
Inherent Advantages of Prosecution: Image
(a) White hats.
(b) Disturbing trend away from this advantage. (c) Not as reliable as it once was.
(d) Include discussion of integrity of the system
Inherent Advantages of Prosecution: Case in chief
(a) We always win the coin toss;
(b) We have the momentum of the offense; exploit and protect it;
(c) Keep the defense off balance
Inherent Advantages of Prosecution: Rebuttal
(a) To continue torturing a metaphor, we always have a chance at a field goal as the clock runs out;
(b) How close you are to the goal posts is a function of how well you have conducted your offense
Inherent Advantages of Prosecution: Subliminal Implication of Guilt
(a) Inherent in every criminal proceeding: this is a criminal trial - the person on trial must be a criminal;
(b) It is the basis for the insistent emphasis that the system places on the presumption of innocence;
(c) It can not be ethically exploited, but
Duncan v. Louisiana
(a) Right to a jury trial in criminal proceedings is incorporated against the States
(b) Court recognizes a species of petty offense that do not require trial by jury
(c) Court suggests that offenses punishable by imprisonment for six months or less do no
Williams v. Florida: What constitutes a jury?
Court held in this case that a jury comprised of six members was not unconstitutional
(a) applies to felony offenses
(b) six is a number that is sufficient to promote group deliberation, insulate members from outside intimidation and provide a representat
Ballew v. Georgia
(a) Defendant was charged with a misdemeanor carrying a possible term of imprisonment of one year
(b) Convicted by a five member jury
(c) Court held that a five member jury does not satisfy the jury trial guarantee of 6th Amendment
Venire: In order to successfully challenge the Fair Cross Section Requirement, the defendant must make a prima facie case that:
(a) Distinctive group was excluded;
(b) Representation of that group in the venire is not fair and reasonable in relation to the number of persons in the community; AND
(c) Underrepresentation is due to systematic exclusion in the selection process
Mu'Min v. Virginia
(a) HIgh profile murder case
(b) 16/26 prospective jurors read about the case
(c) 8/12 eventually selected had read about the case
(d) 8 jurors who had previously read about it responded in voir dire that they could return an unbiased verdict
(e) No inqui
Batson v. Kentucky: Defendant may rely on any relevant circumstances to support an inference of discrimination
(1) Number of racial group members in the venire panel
(2) Nature of crime
(3) Race of defendant
(4) Race of victim
(5) Pattern of strikes against racial group members
(6) Questions and statements during voir dire
Johnson v. California: What is the standard for establishing a prima case of intentional racial discrimination in a Batson challenge?
(a) Totality of relevant facts gives rise to an inference of discriminatory purpose
(b) Court cannot establish a "more likely than not" standard (preponderance of evidence)
Georgia v. McCollum
Government has right to raise a challenge of systematic exclusion by the defense on the basis of race or gender
Powers v. Ohio
(a) Right to challenge peremptory strikes is not dependent on race of defendant
(b) White defendant has standing to challenge the peremptory removal of black jurors
(c) Batson right belongs to excluded jurors as well as defendant
JEB v. Alabama
(a) Paternity case in which nine out of ten male jurors were removed by peremptory challenge
(b) Court held that gender based peremptories are violative of the Equal Protection Clause
Objectionable Inquiry
(a) Seeking to commit juror to a decision based on hypothetical facts
(b) Seeking to have juror pre-judge the weight of evidence
(c) Seeking to have juror pre-judge the credibility of a witness
(d) Misstating the law
(e) Introducing inadmissible facts
(f)
Opening Statement: Pitfalls
(a) Improper statements by attorneys may draw objections from opposing party or admonitions from the court
(b) Save your arguments for closing
(c) Never promise anything in opening statements that you cannot produce in your case-in-chief; err on the side
Reversible Error: Statements by the prosecutor are judged by two issues
(a) Was the statement improper?
(b) Did the statement so infect the proceedings with prejudice that the defendant was denied a fair trial?
Applies to both opening and closing statements
Reversible Error: In assessing whether the statement so infected the proceedings, consider:
(1) Strength of the evidence against the defendant
(2) Effect or absence of any curative instruction
(3) Egregiousness of the prosecutor's conduct
Is a Lawyer's Opening Statement ever Admissible as Evidence?
(a) At issue on appeal is Judge Platt's admission into evidence at the third trial of portions of the opening statement made by McKeon's lawyer at the second trial and the resulting disqualification of that lawyer.
(b) We believe that prior opening statem
Melendez-Diaz v. Massachusetts
(a) Massachusetts statute permitted the admission of sworn, notarized affidavits from drug analysts
(b) Defendant object on the grounds of hearsay
(c) Trial court, relying on statute, admitted the lab report in the form of an affidavit
(d) Defendant appea
Michigan v. Bryant
(a) Police responding to a call that a gunshot victim was at a service station responded and asked the victim questions concerning the identity and location of the person who shot him.
(b) The victim identified his shooter as "Rick" and gave the police th
Michigan v. Bryant: Focus and Formality
(a) Focus is on the primary objective of police interrogation
(b) Formality of the inquiry must be taken into account
Determining the focus and formality of the interrogation is a fact specific analysis that should take into account:
(a) Timing
(b) Location
(c) Content of questions
(d) Content of response
(e) Nature of offense
(f) Existence of ongoing emergency
FRE 801(d)(2)(E)
Statements is not hearsay if the statement is offered against a party and is a statement by a coconspirator of a party during the course and in furtherance of the conspiracy
Bourjaily v. US
Look at slide
US v. Lee
Look at slide
Bruton v. US
Cannot use a co-defendant's confession in the same trial
Richard v. Marsh
If limited to facially incriminating confessions, Bruton can be complied with by redaction
Gray v. Maryland
Cannot use a co-defendant's redacted confession in the same trial unless it can be readacted to effectively conceal the identity of the other defendant
Can you cross examine defendant as to his/her silence: Pre-Arrest Silence
Defendant could be cross examined as to why he did not report killing the victim in self-defense
Can you cross examine defendant as to his/her silence: Post-Arrest Silence
Defendant cannot be cross examined concerning his post arrest failure to provide exculpatory explanation
FRE 404(b): Other Crimes, Wrongs, or Acts
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, p
Purposes of Other Act Evidence
(a) Identity
(b) Intent
(c) Knowledge
(d) Motive
(e) Plan, Scheme or Design
(f) Course of Conduct
(g) Consciousness of Guilt
When do you make a motion for directed verdict
(a) Make motion for a directed verdict (or judgment of acquittal) when the prosecution rests;
(b) Renew motion when government concludes its rebuttal or announces that it rests without rebuttal
Herring v. New York
There can be no doubt that closing argument for the defense is a basic element of the adversary factfinding process in a criminal trial. Accordingly, it has universally been held that counsel for the defense has a right to make a closing summation to the
Style and Content
[S]o long as counsel in his address to the jury keeps fairly within the evidence and issues involved, wide latitude of discussion is allowed. Counsel may draw upon literature, history, science, religion and philosophy for material for his argument. He may
Griffin v. California
Prosecution cannot comment on the defendant's failure to testify
Carter v. Kentucky
Court is required to instruct jury not to draw an inferences from the defendant's failure to testify
Portuondo v. Agard
Prosecutor is entitled to argue that the presence of the defendant during testimony gave the defendant an opportunity to tailor his own testimony
Morgan v. State
MS SC held that State is permitted to respond to direct statements that it did not call a particular witness, by pointing out that the defendant did not either
(a) Invited response
Red Flags of Caution
(a) Defendant's election not to testify
(b) Evidence not adduced at trial
(c) Personal opinions as to guilt
(d) Integrity of defense attorney
(e) appeals to sympathy or prejudice
(f) Matters of punishment
(g) Disputing instructions
(h) Vouching for witnes
Rogers v. US
(a) It is error for the Court to communicate with the jury outside the presence of the defendant. (b) Any communication from the jury should be answered in open court in the presence of counsel and defendant after counsel has been informed of its substanc
Remmer v. US
In a criminal case, any private communication, contact, or tampering directly or indirectly, with a juror during a trial about the matter pending before the jury is, for obvious reasons, deemed presumptively prejudicial, if not made in pursuance of known
Request to Reread Testimony
(a) In general, rereading testimony is disfavored because of the emphasis it places on specific testimony
(b) Court may have court reporter read back portions of the testimony requested by the jury, but any such requests must be disclosed and counsel give
Sending Exhibits to Jury Room
(a) Within discretion of trial court to allow exhibits admitted into evidence to be sent back with jury
(b) Within discretion of court to permit properly authenticated transcripts of recorded conversations or witnesses' testimony to be taken back with the
Tanner v. US
There can be no impeachment of a jury verdict based on allegations of jury misconduct unless there is evidence of external influence
Partial Verdict
(a) Trial court may accept a partial verdict on one or more counts of an indictment
(b) Once a partial verdict has been accepted, the jury cannot revise it
US v. Powell
Inconsistent verdicts are not a constitutional issue
Sending a Copy of the Indictment to the Jury
(a) Within the discretion of trial court to allow a copy of indictment to go back with the jury
(b) If a count has been dismissed or does not pertain a defendant on trial, the indictment should be retyped to eliminate the count(s)
Charging Documents
(a) Complaint
(b) Information
(c) Indictment = formal charge
Formal Charging Document
One on which the defendant is actually subjected to trial
Complaint
Filed by the arresting officer and supported by an affidavit. Results in the issuance of an arrest warrant
Information
Prepared by prosecutor. If supported by an affidavit establishing probable cause, it can be the basis for the issuance of a warrant
(a) Most common use in the federal system, is plea negotiations when defendant has agreed to waive indictment. In plea info
Indictment
In the federal system, returned by a grand jury and is the basis upon which the defendant is formally charged and brought to trial
Invocation of Privilege
Once the right to counsel is invoked, officers must be scrupulous in honoring that assertion. Further interrogation may be conducted only if there is a clear and unequivocal subsequent waiver initiated by the subject.
(a) Edwards v. Arizona