All Slides Flashcards
1
Q
Powell (Why require counsel in any criminal cases)
A
Complexity–Substantive criminal law, defenses, and rules of evidence and procedure are enormously complicated. Defendants need expert assistance.
* Defendants Unsophisticated- Defendants typically lack specialized training in law, may have limited education or intelligence, and may suffer from mental or other impairments
* High Stakes–Criminal convictions may result in imprisonment or even death
2
Q
What cases involve special circumstances that justify the appointment of counsel? (Betts)
A
- Complex Cases–
Some criminal cases present especially complex factual or legal issues, sophisticated strategies, or elaborate trial procedures. But many do not. - Unsophisticated Defendants– Some defendants suffer from developmental disabilities, cannot read or write, or lack a basic
education. But many do not. - Capital or High-Stakes Crimes–Some crimes carry potential sentences of death or long-term imprisonment. But many do not.
3
Q
Hurtado
A
due process does not require indictment my a grand jury.
4
Q
Duncan
A
right to a jury trial is fundamental and extends to all states– served by history, accuracy, and the bill of rights
5
Q
Medina
A
6
Q
Result of Gideon
A
After Gideon, due process requires appointed counsel when the defendant is charged with any felony offense (traditionally, an offense punishable by more than 1 year of imprisonment)
7
Q
Argersinger and Scott (scope of right to counsel)
A
In misdemeanor cases, due process requires
appointed counsel when the defendant is actually
imprisoned for any length of time (Argersinger), but
not when the defendant receives a non-prison
sentence (Scott)
8
Q
Shelton
A
Suspended Sentences
For misdemeanors, “actual imprisonment” includes suspended sentences in which the defendant may later be imprisoned based on the revocation of probation
9
Q
Nichols
A
Right of counsel does not extent to Prior Convictions at Sentencing
When sentencing a defendant who is represented by counsel, courts are free to impose a sentence of imprisonment (or longer imprisonment) based on a prior, uncounseled misdemeanor conviction that was legally valid when entered
10
Q
Gideon. Why should due process require the appointment of
counsel in almost all criminal cases?
A
- Ordinary Circumstances Sufficient– All felony cases are sufficiently complex and high-stakes that ordinary people require counsel
- Government Has Lawyers–The prosecution is represented by counsel, creating a mismatch between a legal expert and a layperson
- Wealthy People Retain Lawyers–Defendants of means consider lawyers necessary
- Rules vs. Standards–
A case-by-case inquiry into special circumstances is unwieldy, requiring that courts hazard guesses
11
Q
Shelton
A
12
Q
Rothgery
A
- Attachment–The Sixth Amendment right to counsel “attaches” when the defendant becomes the subject of “adversary judicial criminal proceedings.” The right thus attaches at the initial appearance (Rothgery), or a formal charge or indictment.
- Critical Stages–But even after attachment, the Sixth Amendment
requires the presence of counsel only during
“critical stages,” i.e., stages where the substantial rights of the accused may be affected. Critical stages may be limited to hearings that implicate the defendant’s guilt or innocence
13
Q
Examples of Critical Stages
A
- Post-attachment
interrogations, lineups - Preliminary hearing
- Arraignment
- Plea hearing
- Plea negotiations
- Psychiatric exam to
test competence - Suppression hearing
- Trial
- New trial motion hearing
- Sentencing
14
Q
Examples of NOT Critical Stages
A
- [Anything that occurs
pre-attachment] - Status conferences
- Taking of handwriting
exemplar - Scientific analysis of
evidence (fingerprints,
blood samples, etc.) - Presentence interviews
with court staff
15
Q
When does the right to counsel end
A
The Sixth Amendment right to the assistance of
counsel extends to “[t]he accused” in “all criminal
prosecutions.” It continues through sentencing and
the entry of judgment, but no further
16
Q
Right to Counsel on Appeal?
A
Under 14th AM
If states afford criminal defendants an opportunity
to appeal, Due Process and Equal Protection
require the appointment of appellate counsel for
indigent defendants (Douglas, Halbert);
but that right does not extend to further
discretionary review, such as a petition to a state supreme court (Ross v. Moffatt), or to state
post-conviction or federal habeas proceedings
17
Q
Begin Ineffective Assistance of Counsel
A
Begin Ineffective Assistance of Counsel
18
Q
Challenges in Identifying Ineffective Assistance
A
- Client Role: Some defendants choose their lawyers, and some
defendants disregard their lawyers’ good advice - Difficult to Identify Errors: There is no one correct strategy in any case, and the mere fact that a lawyer’s choices did not work does not necessarily make them wrong
- Counterfactual:
Imagining the outcome with “effective” assistance
requires speculation and conjecture, creating a risk
of hindsight bias
19
Q
Flood Gates Argument for Ineffective Assistance
A
- Number of Decisions–Criminal defense lawyers take dozens, perhaps
hundreds of actions during every representation that
could be second-guessed - Omissions–The number of additional actions that counsel could have taken in every case is essentially infinite
- Incentives–Most people convicted of crimes and sent to prison are dissatisfied with the outcome, and with their
lawyers. They have strong incentives to challenge
their attorneys’ conduct after the fact.
20
Q
Strictland
A
To establish ineffective assistance of counsel defendant ordinarily must prove:
1) Deficient Performance
Counsel’s errors fell below a standard of
professional reasonableness, based on the totality of the circumstances; and
2) Prejudice. But for counsel’s unprofessional errors, there is a
reasonable probability that the outcome would
have been different.
21
Q
Reasoning behind Strickland
A
- Objective standard, totality of the circumstances
- Presumption of competence, in deference to professional judgment of attorneys
- Hindsight bias must be avoided
- Strategic decisions by counsel “essentially unreviewable”
- Duty to investigate only if, and only to the extent
that, further investigation is reasonable - Defendant’s actions are relevant
22
Q
When is prejudice presumed?
A
- Actual Conflict of Interest. Counsel was conflicted in a manner that had a significant adverse effect on performance
- Denial of Counsel during Critical Stage (Powell)
- Government Interference. E.g. Geders (judge barred counsel from speaking
with the defendant during overnight recess) - Cronic Breakdown.
Counsel “entirely fails to subject the prosecution’s
case to meaningful adversarial testing
23
Q
Examples of Deficient Performance
A
- Prima facie deficiency for failure to investigate (Pinholster)
- Deficient advice about immigration consequences (Padilla)
24
Q
Examples of Prejudice
A
- Effect of perjured testimony on outcome (Nix v. Whiteside)
- Effect of evidence that could have been suppressed (Kimmelman)
- Effect of incorrect but favorable precedent (Fretwell)
- What “outcome” matters at noncapital sentencing? (Glover)
- What “outcome” matters when counsel fails to file a notice of appeal, as requested by the defendant? (Flores-Ortega)
- What “outcome” matters for guilty pleas? (Hill)
25
Begin Conflicts of Interest
Begin Conflicts of Interest
26
Why is there presumed prejudice when there is a real conflict of interest
* High Risk of Error.
The prejudice prong of Strickland requires that the error undermined confidence in the result. Conflicts of interest create such a pervasive risk of error that
there is no need to litigate the effects in each case.
* Problems of Proof.
It is impossible to know how the proceedings would have unfolded differently in the absence of the conflict, especially as to actions not taken
* Constructive Denial of Counsel. A conflicted attorney does not serve as “counsel” for
“the accused” under the Sixth Amendment
27
Reasons for multiple representations
* Cost
* Client’s choice of counsel
* Assurance of solidarity
* Coordinated strategy
28
Rompilla
29
Sullivan
no objection, no duty to inquire, maybe effect on performance, presumed prejudice, = maybe ineffective assistance of counsel
30
Mickens
no objection, yes duty to inquire, no effect on performance, prejudice unclear, = no ineffective assistance of counsel
31
Frye, Cooper
Worse Outcome of Plea Process
A reasonable probability that, but for counsel’s
errors during the guilty plea process there would have been a more favorable result
A reasonable probability that, but for counsel’s
errors:
the defendant would have accepted a plea offer;
the prosecution would not have withdrawn the offer;
the trial court would have accepted the agreement; and
the resulting charges or sentence would have been less
severe.
32
Hill
Wrongly Pleaded Guilty
A reasonable probability that, but for counsel’s
errors, the defendant would not have pleaded guilty but instead would have proceeded to trial
33
Remedy for Ineffective Assistance of Counsel
In Cooper, the Court held that the proper remedy was to compel the prosecution to re-offer the original plea agreement. Should the trial court:
accept the agreement and impose the lighter sentence?
reject the agreement and reinstate the original sentence?
impose a sentence somewhere in between?
vacate the conviction and start over?
34
Begin Self Representation
Begin Self Representation
35
Faretta
The Sixth Amendment affords criminal defendants the
right to represent themselves
36
McCaskle v Wiggins
Standby Counsel Permitted.
Courts may appoint lawyers to help a pro se
defendant, so long as the defendant retains:
(1) actual control over the case (e.g., tactical
decisions, questioning, speaking on important
questions), and
(2) the perception of self-
representation before the jury
37
Can a Pro Se Person Claim "Ineffective assistance of counsel"
no
38
Edwards
Competence (Edwards)
States may set a more demanding standard of
competence for defendants proceeding pro se than
for defendants to stand trial with the assistance of
counsel
39
Martinez
The right to self-representation ends after trial and
sentencing, and does not extend to appeals
40
Do Choice of Counsel violations require prejudice
no
41
Sixth Amendment violations that are “structural” and require automatic reversal:
Self-Representation (Faretta) Denying a competent defendant the right to represent himself in a criminal case
* Counsel of Choice (Gonzalez-Lopez)
Erroneous deprivation of the right to hire an
otherwise qualified lawyer of the defendant’s
choosing
* Overriding Client Instructions (McCoy, Garza) Disregarding client decisions about the
“fundamental objective[s]” of the representation
Right to Counsel
42
Considerations for determining bail
* Seriousness of the offense charged
* Criminal history
* Employment
* Education
* Home ownership
* Family and other ties to the region
* Income, liquid assets available
* Age, demeanor, inclination toward risk-taking
43
Stack v Boyle
Under the Eighth Amendment Bail is “excessive” when:
1. Amount Excessive
The bail required is unusually high by reference to
the “usual” amount for the offense, or to the
maximum fine or punishment for the offense; and
2. No Individual Evidence
The bail amount is not justified by individualized
evidence.
44
Salerno
Federal Bail Reform Act does not offend due process because:
1. Regulatory, Not Punitive--The measure of an “excessive” bail under the Eighth Amendment is not limited to the purpose of assuring the presence of the accused at trial. Other objectives, such as protecting witnesses or the
public, also may be taken into account.
2. Interest Balancing (1) The government has a “legitimate and compelling” interest in preventing crime by accused
persons; and (2) the Act focuses narrowly on those accused of certain serious crimes, with strong proof of a likelihood of future criminal conduct; despite (3) the defendant’s strong liberty interests.
3. the outright denial of bail by definition cannot be excessive because no bail has been set
45
Instances of non punitive preventative detention with supporting cases
- Insane persons (Addington)
- Defendants incompetent to stand trial (Jackson)
- Juvenile offenders (Schall v. Martin)
- Arrestees (Gerstein v. Pugh)
- sex offenders (hendricks)
46
Appellate standard for bail
bail amounts
are reviewed only for abuse of discretion
47
When does a bail determination become appealable
Because bail determinations are “collateral orders” unrelated to the ultimate question of guilt or innocence, and an appeal would be pointless after
trial, an interlocutory appeal is allowed from the denial of a motion to change bail
48
Costs of pretrial detention
* Impairs Defense: Greater difficulty consulting with counsel, gathering
witnesses and evidence, receiving family support
* Job: Loss of income, loss of employment
* Stigma: retrial detention makes the stigma of arrest and
criminal charges more obvious
* Pressure to Plead: Even innocent defendants face strong pressure to plead guilty if an immediate plea results in release
49
Rationales for having publicly employed prosecutors
Professionalization--Lay people lack the skill to investigate and prosecute
crime in a legal system that has grown too complex
* Cost--Investigating crime, generating evidence, paying expert witnesses, and other costs would deter many crime victims from bringing a private criminal action
* Victimless Crimes--Who would bring charges for drug offenses, prostitution, immigration, weapon possession,
obstruction, and other offenses without a private victim?
50
Legitimate Factors for determining whether to charge
strength of evidence and likelihood of conviction
seriousness of the offense, as measured by the harm caused or the defendant’s culpability
value of prosecution in terms of deterrence, incapacitation, rehabilitation, and other goals
defendant’s criminal history and characteristics
interests and wishes of crime victims
public profile of the case
public interest and local priorities
costs and opportunity costs of prosecution, measured in time and taxpayer dollars
51
Illigitimate factors for determining whether to charge
discrimination based on race, other characteristics
personal vindictiveness, lack of sympathy for defendants or victims
personal affinity, loyalty, or professional relationship with defendants
targeting of political enemies, or to affect the results of an upcoming election
improving the prosecutor’s win/loss record
“no jury would convict”
Prosecutorial Discretion
52
Statute at issue in Inmates of Attica
U.S. Attorneys are “authorized and required * * * to institute prosecutions against all persons violating any of the [federal civil rights laws].”
53
Inmates of attica
No obligation for prosecutors to charge under 42 USC 1987.
Prosecutorial charging decisions are:
* Secret--Prosecutors need not disclose the reasons for their decisions, and almost never do so
* Unreviewable (Inmates of Attica)
Prosecutors’ decisions frequently are not reviewed by anyone, and almost never are reviewed externally
* Decentralized--District attorneys and attorneys general delegate their authority to line prosecutors. They in turn depend on police and other agents.
* Complex and Subjective Some rules, but mostly multifactor standards
54
Legal Rationales for unreviewability of prosecutorial decisions to charge or not charge
* Separation of Powers--The executive has power to take care that the laws are executed, making judicial review inappropriate
* No Judicially Manageable Standard--
Charging decisions require a big-picture perspective, and courts are ill-equipped to second-guess the decisions of prosecutors without the full context
* Lack of Duty --Mandamus is available only when officials have an
underlying legal duty, and charging is discretionary--
* Standing Victims cannot establish traceability or redressability
55
practical rationales discussed in inmates of Attica
Secrecy--The only way to evaluate non-prosecution decisions is to review records of confidential investigations.
Permitting discovery and evaluating that decision may tarnish the reputation of innocent people.
* Chilling Effect--Executive officials may be chilled in the performance of their duties if they knew that courts could
countermand them, to the detriment of public safety
* Litigation Management--What happens if prosecutors subsequently seek to dismiss, or perform poorly, or offer a generous plea deal? Do the courts or plaintiffs take over? Judicial Review of Prosecutorial Discretion
56
Batchelder
* Vagueness--There is nothing ambiguous about the two “contradictory” penalty provisions
authorizing the defendant’s sentence. The statute afforded fair notice of the potential punishment.
* Due Process / Equal Protection--Prosecutorial discretion (even “unfettered”) is routine and unavoidable. The constitution prohibits discrimination in charging when alleged and proven.
* Nondelegation--Both statutes set the maximum sentence to be imposed by the judge, who was free to select a less
severe punishment
57
McCleskey
For a Successful Equal Protection Challange to Prosecutorial Discression:
* Purposeful Discrimination Required--The Constitution prohibits intentional (i.e. purposeful) discrimination, not disparate impacts
* Extreme Disparity May Be Enough
Disparity creates an inference of purposeful discrimination, but only if extreme (Yick Wo,
Gomillion)
* Discretion Inevitable, Clear Proof Required Because criminal justice necessarily requires discretionary judgments, “exceptionally clear proof”
must be advanced to show that it has been abused
58
Avenues for Judicial Review of Prosecutorial Decisions
Equal Protection
First Amendment
“Vindictive” Prosecution
Civil Action (Hart v. Moore)--But an action for malicious prosecution or retaliation requires that the government lacked probable cause
59
Armstrong
Equal Protection (Armstrong)--But defendants must identify similarly situated defendants who were not prosecuted
60
Wayte
First Amendment-- But courts defer to government’s enforcement strategy where plausible non-speech reasons exist
61
Blackledge/Menna
“Vindictive” Prosecution--But courts presume good faith for prosecutorial decisions before trial (Goodwin)
62
Hart v. Moore
Civil Action--But an action for malicious prosecution or retaliation requires that the government lacked probable cause
63
Costello
Evidence--“An indictment from a legally constituted and unbiased grand jury . . . if valid on its face, is sufficient to call for trial.” Neither the admissibility
nor the sufficiency of the evidence is reviewable.
64
Williams
The Court rejects a requirement that prosecutors must disclose evidence that “directly negates” guilt
Because the grand jury is an accusatory body, prosecutors have no obligation to disclose exculpatory evidence
65
Rationales for Why Prosecution does not have to disclose all evidence negating guilt at the grand jury stage
* History--Courts historically have limited involvement with grand juries, which operate using informal procedures and hear only the prosecutor’s case
* Accusatory, Not Adjudicatory--Grand juries do not to decide guilt or innocence, or even whether a jury could find guilt at trial. They merely accuse, based on probable cause.
* Independence--In theory, grand juries lead their own investigation. If they have no obligation to seek mitigating evidence, why should prosecutors have to present it?
66
Standard of Review for Error at Grand Jury Stage
Grand jury errors before trial can be harmless (Bank of Nova Scotia), and after a guilty verdict at trial almost always are harmless (Mechanik)
67
Begin Speedy Trial Material
In all criminal prosecutions, the accused shall enjoy the
right to a speedy and public trial * * * .
U.S. Constitution, Sixth Amendment
68
Benefits to Defendants of the Speedy Trial Clause
Accuracy--Over time, defense witnesses may become unavailable and physical evidence may spoil. Delay
may prejudice defendants by preventing them from offering accurate evidence of innocence at trial.
* Liberty--Defendants may be imprisoned during the months leading up to trial, or may be subject to supervision and other restrictions on their liberty
* Cloud--People accused of crime find their lives clouded with
uncertainty, anxiety, and public disapproval
69
Benefits to the public of the speedy trial clause
Accuracy--Over time, state witnesses may become unavailable and physical evidence may spoil. Delay may prejudice the prosecution by preventing accurate evidence of guilt from being introduced at trial.
* Flight Risk--Speedy trials reduce the amount of time defendants have to flee the jurisdiction
* Dangerousness--Some defendants who remain free before trial pose
a threat to the public, and a speedy trial minimizes the duration of that threat
70
Barker
Four-part balancing test :
1. Length of Delay--How long did it take from the filing of the accusation
to commence the trial? Some threshold level of delay (e.g., 1 year) is needed to trigger an inquiry.
2. Reasons for Delay--Can the government offer good reasons, bad
reasons, or neutral reasons for the delay?
3. Defendant’s Assertion of the Right--
Failure to assert the right makes Speedy Trial claims more difficult
4. Prejudice to the Defendant--Examples: prejudice to case, incarceration, anxiety
71
Doggett
Starting Point
The clock begins to run upon arrest or indictment (or unsealing of indictment), whichever comes first
72
Lovasco
Pre-Charging Investigation Delay
The Speedy Trial Clause applies only to the “accused in a criminal case.” The fact that pre-charging delay prejudiced the defense, standing alone, does not violate due process
73
Betterman
Pre Sentencing Delay
In 2016, the Court unanimously held that the Speedy Trial Clause does not apply to delays between conviction and sentencing. The right to a speedy trial “detaches” upon conviction.
74
Begin Venue and Vicinage
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed * * * .
U.S. Constitution, Sixth Amendment
The 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; but when not committed within any State, the trial shall be at such place or places as the Congress may by law have directed.
U.S. Constitution, Art. III, § 2
Venue and Vicinage
Except as otherwise expressly provided by enactment of Congress, any offense against the United States begun in one district and completed in another, or committed in more than one district, may be inquired of and prosecuted in any district in which such offense was begun, continued, or completed.
18 U.S.C. § 3237(a)
75
Rodriguez-Moreno
Firearm possession in state A “during and in relation to” a continuing offense in states A and B... venue is proper in states A and B
Kidnapping, offense beings in state A and “continues” as the victim is brought to state B... venue is proper in states and A and B
76
Rule 21 Transfer (of Venue) for Trial
(a) For Prejudice. Upon the defendant’s motion, the court must transfer the proceeding against that defendant to another district if the court is satisfied that so great a prejudice against the defendant exists in the transferring district that the defendant cannot obtain a fair and impartial trial there.
(b) For Convenience. Upon the defendant’s motion, the court may transfer the proceeding, or one or more counts, against that defendant to another district for the convenience of the parties, any victim, and the
witnesses, and in the interest of justice.
77
Venue and Pretrial Publicity Issues in Criminal Cases
* Inaccurate or Misleading Information
* Accurate But Incomplete Information
* Accurate But Inadmissible Information
* Accurate But Prejudicial Information
78
How to avoid dangers of pretrial publicity
1. Transfer Venue. Move the trial to a different jurisdiction, where the publicity was more limited and the pool less biased
2. Unexposed Jurors. Permit citizens to serve on the jury only if they were
never exposed to pretrial publicity about the case
3. Jury Instructions and Promises. Insist that jurors must promise to be impartial, and instruct them to disregard pretrial publicity
4. Wait. Grant a continuance and wait for passions in the district to subside
Venue and Pretrial Publicity
79
Skilling
The failure to transfer venue violates due process in either of two circumstances:
1. Presumed Prejudice (Rideau, Estes, Sheppard)--Pretrial publicity or other characteristics of the venue may make the risk of bias against the defendant so pervasive that prejudice is presumed. Due process requires a change of venue regardless of the evidence of bias as to particular jurors.
2. Actual Prejudice (Irvin)--If any juror who actually served in the case was
biased against the defendant, then reversal is required.
80
Considerations in Skilling of Presumed Prejudice
Majority
* Size of city, likelihood of finding jurors
* Much pretrial publicity was objective
* Time passed (4 years) between crime and trial, cooling passions
* Acquittal on some charges
Dissent
* Extensive media coverage of crime, trial, and victims
* Large number of victims, likelihood of relationships
* Guilty plea by co-defendant before trial
* Questionnaires and surveys of potential jurors during voir dire
81
Consideration of actual prejudice in Skilling
Majority
* Extensive pretrial screening for bias,
careful voir dire questioning
* Deference to trial judge’s factual finding that all jurors were impartial
* Lack of bias toward Skilling specifically
Dissent
* Cursory and “unenlightening” answers to general questions in voir dire
* Worrying answers about guilt (Juror 11)
* Equivocal answers about impartiality (Juror 63)
* “Sliding scale” scrutiny of actual prejudice in light of near-presumed prejudice
82
Begin Joinder and Severance Material
Joinder and Severance Material
83
Rule 8(a) – Joinder of Offenses
An indictment or information may join offenses if they are “of a similar character,” are “based on the same act
or transaction,” or are “connected with or constitute parts of a common scheme or plan”
84
Rule 8(b) – Joinder of Defendants
An indictment or information may charge multiple defendants for conduct arising out of the “same act or
transaction” or “series of acts or transactions”
85
Rule 14 – Prejudicial Joinder
If joinder nonetheless “appears to prejudice a defendant,” the court “may” order separate trials or severance
86
Zafrio
A district court should grant severance under Rule 14 only if there is a serious risk that a joint trial would
[1] compromise a specific trial right of one of the defendants, or
[2] prevent the jury from making a
reliable judgment about guilt or innocence.
87
Examples of "Serious Risk" under Zafrio
* Inability to confront witnesses (see Bruton)
* Otherwise inadmissible evidence for the prosecution (see Hawkins)
* Otherwise admissible evidence for the defense (e.g., inculpatory evidence against a co-defendant that the co-defendant can suppress)
* Lower culpability defendant
88
Currier v Virginia
The defendant was accused of helping to steal a safe that contained guns and money. He was charged with:
(1) burglary,
(2) larceny, and
(3) being a felon in possession of the stolen guns. Count (3) was successfully severed from counts (1) and (2).
Held: A defendant waives any double jeopardy claim when moving to sever charges that are otherwise properly joined (He could still be prosecuted for count three in a separate action)
89
Rationales for allowing severed claims to be prosecuted in separate subsequent actions
he double jeopardy bar is designed to prevent government abuse through successive prosecution, and that risk is not present when the defendant affirmatively requests successive prosecution
* Many states “liberally grant” severance motions, and they might respond to a double jeopardy rule that
“increase[s] the cost of severed trials by making them less freely available
90
Kyles
91
Ruiz
92
Williams
93
Taylor
94
Alford
Class
95
Brady v Maryland
due process forbids the prosecution from
“suppress[ing]” any “exculpatory” evidence “material” to
the defendant’s guilt or punishment, regardless of the
good faith of the prosecutor.
To violate Brady, evidence must have been:
1. suppressed,
2. exculpatory, and
3. material.
96
When is Evidence Material under Brady v Maryland?
Evidence is material if there is a “reasonable
probability” that, but for the suppression of the
evidence, the result would have been different
Relevant “result” depends on the stage of
proceedings (trial, sentencing, etc.) to which the
evidence was material
97
What evidence is clearly Exculpatory under Brady (4 categories)
*Exculpatory-- Evidence that the defendant did not commit the crime (e.g., an alibi witness)
* Indirectly Exculpatory-- Inculpatory evidence as to an alternative suspect, suggesting that the defendant is not guilty
* Impeachment--Evidence that impeaches a government witness, undermining their credibility (Bagley)
* Mitigation--Evidence in mitigation that is relevant at sentencing
98
What Evidence MIGHT be exculpatory under Brady?
- Inadmissible evidence, like a failed polygraph test
- Evidence of unknown import, like untested DNA or blood type evidence (Connick v. Thompson)
- Evidence that the search that produced evidence admitted at trial was illegal
99
Bordenkircher
100
Hodge
101
Rumery
102
Mabry
103
Adamson
104
Santobello
105
Ballew
106
Duren
107
Batson
Challenges to a peremptory challenge in three steps:
(1) Prima Facie Case-- Opposing counsel objects, in circumstances allowing a plausible inference that a prospective juror has been excluded for discriminatory reasons
(2) Neutral Explanation-- The burden shifts to the attorney exercising the peremptory strike to articulate a neutral, non-discriminatory reason for the exclusion
(3) Trial Court Factual Determination--If the judge finds, based on the circumstances, that the strike resulted from intentional discrimination, then the strike is ignored and the juror is seated
108
Criticisms of Batson
Invites Abuse--Peremptory challenges by nature invite abuse and
discrimination, based on both explicit and implicit
racial bias
* Impossible to Prove--In a venire containing very few members of a
minority group, no pattern can emerge
* Easily Circumvented--Any competent attorney can articulate a plausible
race-neutral reason for any peremptory strike:
- Hernandez (1991) (bilingual jurors excluded)
- Purkett v. Elem (1995) (long “unkempt” hair)
109
Powers
Defendents of any race-- Discriminatory strikes violate the Equal Protection rights of the prospective juror, not the defendant, making Batson challenges available to anyone.
110
McCollum
purposeful discrimination by defense counsel also violates Equal Protection
111
JEB
Although men and women bring different perspectives as jurors, sex-motivated strikes nonetheless violate Equal Protection
112
Flowers
Batson Appilied
- Pattern of Strikes
Over the course of six trials (!), prosecutors struck all 36 black venire members in the first four trials, state courts twice reversed the conviction based on Batson, yet prosecutors struck 5 of 6 black members
- Disparate Questioning--
Prosecutors asked 12 questions of 11 white seated jurors, but 145 questions of 5 black venire members
- Side-By-Side Comparisons-Prosecutors said they struck one black venire member because she knew some defense
witnesses, but several white potential jurors did to
113
Miller-EI II -- Evidence of Discrimination
* Misstatement of Testimony Prosecutors mischaracterized statements by one black potential juror, who was in fact pro-death penalty and favorable to the prosecution...
* Shifting Reasons
...only then did they rely on an alternative explanation (that the potential juror’s brother had a felony conviction)...
* Weak Reasons...yet it was clear that the potential juror and his
brother were not close, and prosecutors did not
delve deeper. Race Discrimination in Miller-El II (2005)
114
Foster v Chatman (Batson Appilied)
* Venire List Codes--
Names of black prospective jurors were highlighted in bright green, along with a letter “B” for black
* Notes--Prosecutors’ notes labeled all black venire members “definite NO’s,” and a notation about one person’s house of worship said “NO. No Black Church.”
* Shifting Reasons--Preparing for Batson “reeks of afterthought”
115
Begin Defendants Trial Rights
Begin Defendants Trial Rights
116
Griffin
Adverse Inferences--The Constitution forbids prosecutors from arguing, and judges from instructing, that the jury may draw an adverse inference of guilt from a defendant’s failure to
testify.
117
Rationales for not allowing an adverse inference
Burden on Constitutional Rights--An adverse inference would effectively punish the
defendant for asserting the Fifth Amendment
privilege against self-incrimination
* Unreliable Inference--
Silence does not necessarily indicate guilt. Defendants may decline to testify to avoid introduction of their criminal records, to avoid
disclosure of other embarrassing facts, or out of concern they will perform poorly on the stand
118
Agard
* Minimal Burden-- The adverse inference goes to the witness’s credibility but does not directly establish guilt, and prosecutors are free to impeach defendants’
testimony in many ways
* “Natural and Irresistible” Inference--The inference cannot be avoided, given that the jury has watched the trial and knows the order of the witnesses
119
Begin the Confrontation Caluse
Begin the Confrontation Clause
120
Crawford
Under Crawford, the Sixth Amendment prohibits the
admission of “testimonial evidence” without affording the defendant an opportunity to confront the witness.
The sole exception is for cases in which confrontation already occurred:
1) the witness is unavailable, and
2) the defendant had a prior opportunity to cross-examine the witness.
121
After Crawford, the Court’s (stated) approach to the Confrontation Clause is characterized as:
* Formal--Except in narrow circumstances, testimonial
evidence always requires confrontation, and the
reliability of the statements is irrelevant
* Bright-Line Rule
All “testimonial” statements are inadmissible, with no
weighing and balancing of factors bearing on reliability or other characteristics
* No Relationship to Hearsay--Crawford indicates that hearsay rules are irrelevant to the Confrontation Clause analysis
122
Testimonial Evidence
Testimonial evidence is anything that operates as a “functional equivalent” of in-court testimony, or takes the form of formal testimonial materials, or was made in a context that makes clear it would be available for use
at a later trial.
123
Is this statement testimonial? Statements to police for the purpose of investigation, recorded, after Miranda warnings?
yes (Crawford)
124
Is this statement testimonial? Statements to police about recent crime, not recorded, no Miranda warnings?
Yes (Hammon)
125
Is this statement testimonial? Statements to 911 operator describing a crime in progress and asking for help?
No (Davis)
126
Is this statement testimonial? Statements to police about recent crime, intended by police to gather information to stop a dangerous gun-wielding killer who is currently at large?
No (Bryant)
127
Is this statement testimonial? Statements describing events in real time, especially
during an emergency, generally
no (Davis)
128
Is this statement testimonial? Statements made to third parties, rather than law
enforcement,
generally are not testimonial (Clark)
129
Formal interrogation
generally testimonial (Crawford)
130
Melendez-Diaz
Certificate from state
laboratory of the chemical contents and quantity of a substance, no C-X of analyst
who conducted tests was a violation of the confrontation clause because the certificate was for the purpose of criminal investigation and trial
131
Bullcoming
Certified forensic lab report about the blood alcohol content of a sample, no C-X of analyst for specific test, but
C-X of scientist who testified to ordinary procedures violated the confrontation clause
132
Williams v Illinois
Expert testimony that a third-party DNA profile produced by an outside lab, using a sample
from an unsolved rape,
matched a profile from a state police lab, no C-X of lab tech did not violate the confrontation clause
(not admitted for truth, purpose not for accusation, no incentive for oblivious lab to lie)
133
The Burton Rule
A co-defendant’s confession that also implicates the defendant, admitted into evidence without an opportunity for cross-examination, violates the Confrontation Clause.
That is true even if:
* the confession is introduced into evidence only against the co-defendant, and
* the jury receives a limiting instruction directing it to disregard the confession when considering the
defendant’s guilt.
134
Rational for the Burton Rule
such a confession is so “devastating” and “powerfully incriminating” that the jury likely will disregard the instructions, effectively making the co-defendant a witness against the defendant.
135
Darden
Prosecutorial Misconduct.
The evidence at trial strongly supported guilt, making it unlikely that the argument affected the result:
* No Misstatement of Evidence. The prosecutor offered opinions and used troubling language, but did not misrepresent the evidence
* Invited Response. Defense counsel invited the improper argument
* Jury Instructions. The jury knew to discount counsel’s arguments
* Tactical Decision. Defense counsel turned the prosecutor’s inflammatory language against him in closing
136
Burden of Proof and Jury Verdict Rules
Burden of Proof (In re Winship). Due process requires that the prosecution prove
every element of a criminal offense beyond a
reasonable doubt. But the legislature defines the
elements and may place the burden of proof on
defendants as to affirmative defenses (Patterson).
* Consistency. General verdicts are standard, and logical consistency is not required
* Impeachment (Peña-Rodriguez). Generally prohibited, with narrow exceptions under
the federal rule and somewhat broader exceptions under the “Iowa rule,” subject to constitutional
constraints
137
Rejected Exceptions to the no impeachment (of the jury) rule
Tanner (1987). The evidence (if admitted) would have shown that
the jurors were under the influence of drugs and
alcohol during the trial and deliberations.
Warger (2014) (civil case).
The evidence (if admitted) would have shown that
the jury foreperson harbored clear pro-defendant bias that rendered him impartial, but lied about it during voir dire.
138
is logical consistency required for general verdicts?
no
139
Do we allow impeachment of the jury?
generally prohibited under Pena-Rodriguez (narrow exceptions under fed rule and somewhat broader exceptions under the Iowa rule, subject to constitutional restraints)
140
What is the No-Impeachment rule
During an inquiry into the validity of a verdict or indictment, a
juror may not testify about any statement made or incident that
occurred during the jury’s deliberations; the effect of anything on
that juror’s or another juror’s vote; or any juror’s mental
processes concerning the verdict or indictment. The court may not receive a juror’s affidavit or evidence of a juror’s statement
on these matters.
141
Exceptions to the no impeachment rule
juror may testify about whether:
(A) extraneous prejudicial information was improperly
brought to the jury’s attention;
(B) an outside influence was improperly brought to bear on
any juror; or
(C) a mistake was made in entering the verdict on the verdict
form.
142
Pena-Rodriguez v Colorado
Rationales for a constitutional exception for racial bias:
* Racial Bias is Systemic
Unlike instances where individual juries go “off
course,” racial bias poses systemic, recurring risks
* Other Safeguards Inadequate. Voir dire and voluntary reporting cannot effectively
root out racial bias because of its stigma
* Public Confidence
Failing to correct verdicts tainted by racial bias would undermine public faith in the jury system
* Race is Different. Racial bias implicates unique historical, constitutional, and institutional concerns
143
Rejected exceptions to the no-impeachment rule
Tanner (1987). The evidence (if admitted) would have shown that
the jurors were under the influence of drugs and alcohol during the trial and deliberations
Warger (2014) (civil case). The evidence (if admitted) would have shown that the jury foreperson harbored clear pro-defendant bias that rendered him impartial, but lied about it during voir dire
144
Williams
what sentencing factors considered by the judge:
- severity of the offense
- uncharged conduct
- morbid sexuality
- likelihood of recidivism
black box sentencing is upheld by SCOTAS
145
Court's rationale supporting indeterminate (black box) sentencing in Willimas
* History- For hundreds of years, courts have relied on hearsay and inadmissible evidence at sentencing
* Accuracy- A broad essential to rehabilitation and punishment
* Cost- trial-like proceeding at
sentencing too costly
* Federalism and
leaves states free to experiment
146
similarities between trial stage and sentencing stage
- public
- adversary
- right to counsel
- right to testify (or not)
147
Characteristics of a trial that are different than sentencing
* Jury of peers makes all
relevant findings of fact
* Proof beyond a reasonable
doubt required
* Hearsay and other rules of
evidence apply
* Live witness testimony
* Right to confront witnesses
* Notice of facts in dispute
based on offense elements
148
characteristics of sentencing that are different than trial
* Judge alone makes all
relevant findings of fact
* Proof by a preponderance of
the evidence sufficient
* Hearsay admissible, no
rules of evidence apply
* No required live testimony
* No right of confrontation
* No effective notice of facts
the judge will deem relevant
149
challenges to sentencing
no agreed upon theory
complexity
scaled outcome
150
criticisms of indeterminate sentencing
disparity
discrimination
truth in sentencing (sentence actually served)
soft on crime
151
Determinate Sentencing Reforms
- abolition of parole
- mandatory minimums
- statutory determinate sentencing
- sentencing guidelines
152
criticisms of determinate sentencing
severity
complexity
inflexibility
prosecutorial control
153
McMillan
state legislatures are generally free to decide which facts are elements of criminal offenses and which are sentencing factors to be accorded specific weight-- subject to some way the dog constitutional limits
154
Almendarez-Torres
legislatures are generally free to
decide define sentencing factors, and a prior conviction is
as traditional and “typical a sentencing factor as one might
imagine.”
155
Nuanced 6th amendment sentencing case holdings
An element of a criminal offense is any fact--
* except for a prior conviction (Almandarez-Torres)
* is legally required by a statute or an essentially
mandatory guideline (Booker),
* either to increase the minimum sentence (Alleyne),
* or to exceed the maximum sentence (Apprendi).
Both elements must be found by a jury beyond a reasonable doubt or admitted in a guilty plea.
156
Booker
Guideline range is merely
advisory, making it equivalent to “black box” sentencing
(Williams). No factual findings are necessary to exceed
the guideline maximum.
157
“Blakelyizing” in sentencing
The indictment must allege, and the jury must find or the defendant must admit as part of a guilty plea,
any facts that increase the guideline range or are otherwise legally necessary to justify the sentence
158
"Bookerizing" in sentencing
Retain the guideline structure and sentencing ranges, but make them purely advisory
159
Questions for Appeals courts after booker
* Presumption of Reasonableness (Rita)
Courts of appeals may recognize a presumption that within-guideline sentences are “reasonable”
* Proportionality (Gall)
Courts of appeals reviewing a sentence outside the guideline range may not demand a justification for variance mathematically proportional to the degree of variance (e.g., 80% below the minimum)
* Disagreement (Kimbrough)
Courts of appeals must review for abuse of
discretion, even if the ground for variance is simple
disagreement with the guidelines
160
Just how advisor are the guidelines?
Calculation Errors
* (Molina-Martinez) (8-0)
The guidelines are “not only the starting point” but “also the lodestar.” Thus, a miscalculation of the guideline range usually is “plain error” and requires a new sentence, even if the sentence fell within the
correct range and the offender made no objection.
* Ex Post Facto (Peugh) (5-4) The guidelines continue to exert a strong effect on
sentencing. Thus, it violates the Ex Post Facto Clause to amend the guidelines and apply the new version retroactively, to the detriment of an offender whose conduct predates the amendment.
* Appellate Review (Gall) (5-4) Courts of appeals must review sentences only for abuse of discretion, according deference to sentencing courts’ reasons. Appellate review for
proportionality to the guidelines would create too much “gravitational pull,” violating Apprendi. The guidelines are, and must be, mere suggestions.
* Vagueness (Beckles) (5-4) Because the guidelines are merely advisory and
sentencing traditionally involves “unfettered
discretion,” provisions of the guidelines cannot be “void for vagueness” for failure to provide fair notice
161
Rationals for the Double Jeopardy Clause
- finality
- guards against manipulation
- prevents abuse
162
SCOTAS has interpreted the double jeopardy clause as protecting against
1. Prosecution after acquittal
2. Prosecution after conviction
3. Strategic mistrial by the prosecution
4. Double punishment in a single proceeding
(interpretive presumption only, Hunter)
163
Fong Foo
an acquittal is final for double jeopardy purposes, no matter when the acquittal takes place
164
Green
if there is an implied acquittal after the verdict, no retrial
165
Blueford
retrial after a hung jury is okay
166
Wilson
government can appeal a JNOV of acquittal after conviction (no double jeopardy clause violation)
167
Burks and Ball
defense appeals for insufficiency of the evidence = no retrial; otherwise retrial is okay (ball)
168
Crist v Bretz
jeopardy attaches when jury empaneled or witnesses are sworn
169
Scott
if dismissal grounds are releated to guild or innocence = no retrial; otherwise retrial is okay
170
Kennedy
mistrial request by defended because prosecutor intended to provoke = no retrial; otherwise retrial is okay
171
Perez
mistrial because of manifest necessity = retrial okay; otherwise no retrial
172
What does "same offense mean" for double jeopardy purposes
“Where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to
be applied * * * is whether each provision requires proof of a fact which the other does not.” Blockburger
173
major conceptual criticisms of Blockburger
* Form over substance. The test is unconnected to the potential for
prosecutorial abuse, offering inconsistent protection
against multiple prosecution and no protection
related to sentencing
* Windfall. Because the order of charges is irrelevant,
Blockburger sometimes provides a windfall to
defendants because of prosecutorial blunders
* Overcriminalization.
Blockburger has been thwarted by a criminal code with many overlapping but distinct offenses
174
Garrett and Felix (pattern of criminality of offenses)
Some offenses require, as elements, a series of
other criminal offenses.
Federal RICO = two or more acts of “racketeering activity” from a list of 35 crimes
Federal continuing criminal enterprise =
“continuing series” of drug trafficking offenses
Conspiracy = “overt act, including a crime
committed by the defendant or a co-conspirator
175
grady v corbin (same conduct)
Offense 1 = minor traffic tickets for (a) DUI, and (b) crossing the median
Offense 2 = reckless homicide based on (a) DUI, (b) crossing the median, and (c) driving too fast.
The court held that this was the same conduct for double jeopardy purposes and D could not be prosecuted for offense 2 (this is overruled later)
176
Dixon
The Court overrules Grady and reinstates
Blockburger as the governing test.
Offense 1 = while on bond subject to a condition not to commit any crime, criminal contempt for possession of cocaine with intent to distribute
Offense 2 = possession of cocaine with intent to
distribute
Scalia (for 4): follows Harris, violation of DJ
Rehnquist (for 3): distinguishes Harris, no crime is a lesser included of contempt, no violation of DJ
177
Double Jeopardy and waiver
A defendant’s request to sever some charges for a separate trial waives any double jeopardy objection,
even if the issue preclusion rule of Ashe v. Swenson would otherwise bar a second trial. Currier v.
Virginia (2018) (5-4).
178
double jeopardy and civil penalties
Double jeopardy applies only to successive criminal punishments. Civil penalties and civil forfeiture do not trigger the double jeopardy bar unless they are “essentially” punitive, with deference to the legislature’s characterization
179
what count as separate sovereigns?
State and federal (Moore)
State and state (Heath)
State and Indian Tribe (Wheeler)
180
what count as the same sovereign?
Federal and territorial (Grafton)
Federal and Puerto Rico (Sanchez Valle)
State and municipality (Waller)
181
Puerto Rico v Sanchez Valle
Puerto Rico traces its power to prosecute to the same “ultimate source” as the United States. Successive prosecutions by those governments thus fall outside the “dual sovereignty” exception.
182
Gamble
Defense of dual sovereignty
- text
- sovereign interest
- foreign sovereigns
183
Rationals for appellate and collateral review
accuracy
deterrence of errors
coordination
legitimacy
184
Key characteristics of appeals in criminal cases
-statutory basis (no constitutional right to an appeal)
-final judgements
185
final judgements for appellate and collateral review
dismissal, acquittal, sentence
186
exceptions to final judgements for appellate and collateral review
- collateral orders (motion to reduce bail)
- denial of double jeopardy dismissal
- statutory grounds (gov appeal from order suppressing evidence)
187
how is appellate and collateral review asymmetrical?
Double jeopardy creates asymmetries in the right to appeal, preventing the government from
appealing from errors that result in acquittal or in some cases mistrial
188
how is appellate and collateral review retroactive?
Under Griffith (1987), new legal rules always apply retroactively to cases still pending on direct appeal. That means that decisions answering unresolved
questions, or even reversing past precedent, apply
to cases in the appellate-review pipeline, subject to
the usual rules for harmless error and plain error.
189
Rationals for Harmless Error Review
- accuracy
- costs
- over deterrence
190
Drawbacks of Harmless error review
- difficult counterfactual inquiry
- intrudes on juries
- disrespects constitutional rights
191
Trial Errors subject to Harmless error review
* Overbroad jury instructions
* Admission of evidence
* Exclusion of evidence
* Evidentiary presumption, even if
conclusive (Yates)
* Restriction of cross-examination
* Right to be present at trial
* Comment on defendant’s silence
* Denial of counsel at preliminary
hearing
* Admission of involuntary
confession
* Failure to instruct on a single
element (Neder)
192
Structural errors subject to automatic reversals
* Denial of counsel during a “critical stage” of proceedings
* Biased judge
* Race discrimination in selection of grand jury
* Right to self-representation
* Right to a public trial
* Right to a public jury selection process (Presley)
* Defective instruction about “reasonable doubt” (Sullivan)
193
Common Features of Structural Errors
* Affect Entire Trial
Errors that affect the entire trial, rather than a discrete event or piece of evidence, tend to be
structural
* Decisionmaker
Errors that go to the identity or impartiality of the judge or jury tend to be structural
194
In Weaver (2017), the Court described “three broad rationales” for structural error:
* Unrelated to Reliability: The right in question does not safeguard against false conviction, but protects some other interest.E.g., right to self representation under Faretta.
* Impossible to Measure: The prejudicial effect of the error is “simply too hard to measure.” E.g., right to select counsel of choice.
* Always Fundamentally Unfair: By nature, the error “always results in fundamental unfairness.” E.g., Gideon (right to appointed
counsel), Sullivan (reasonable-doubt instruction).
195
Fulminate
structural errors require automatic reversal 100% of the time
196
Chapman
for constitutional errors:
- burden on gov
- reverse unless harmless beyond a reasonable doubt
- 90% odds of reversal
197
Kotteakos
for non constitutional errors:
- burden on gov
- reverse unless error had "no substantial and injurious effect" on the outcome
- 75% odds of reversal
198
Olano
for unpreserved errors
- burden on Def
- affirm unless there was plain error
- 10% odds of reversal
199
failure to preserve a claim prevents a party from raising it on appeal unless
1. Not Waived: The party has not been intentionally waived;
2. Plain: The error is “clear or obvious” at the time of the decision on appeal (Henderson); and
3. Prejudicial: There is a “reasonable probability that, but for the
error claimed, the result of the proceeding would
have been different” (Dominguez Benitez),
although it is unclear whether “structural errors” automatically qualify (Puckett).
4. Discretionary: The court of appeals “may” remedy the error if it
“seriously affects the fairness, integrity or public reputation of judicial proceedings.”
200
Weaver
a structural error
raised for the first time on collateral review does not automatically qualify as prejudicial under Strickland:
* Not Always Fundamentally Unfair
* Objection Can Correct
* Collateral Review Costly
201
Forms of collateral review
* State postconviction proceedings (“state habeas”)
* Federal habeas corpus for state prisoners
* Common-law writ of habeas corpus for executive detention (e.g., Guantanamo Bay cases)
* Federal postconviction proceedings for federal
prisoners
202
Key Features of collateral review
* Civil actions, collateral to the criminal case
* Filed against the person detaining the petitioner
* Challenge continuing detention
* Remedy is release, typically absent a new trial
203
Heath
