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information or access to their systems for the government to collect data. In others, the government has obtained FISC orders. In recent years third-party authority has been scrutinized in the context of metadata, or non content information. An example of metadata is the government’s collection of phone numbers dialed but not the content of those conversations. In its review of an application for an order to capture a huge amount of “telephony metadata,” FISC ruled in 2013 that such intelligence gathering is analogous to the phone records sought in Smith v. Maryland.37 In that case the Supreme Court held that when an individual dials a phone number he is transmitting the data to a third party, the telephone company, and as a consequence loses his privacy in the number he dialed. For this reason the acquisition of the number dialed, but not the content of the call, does not raise implicate the Fourth Amendment. FISC held that this conclusion is not changed because of the size of the data request.38 The amendments to the FISA mentioned earlier empowered the Foreign Intelligence Surveillance Court to review and approve programs that collect metadata, in addition to individual orders of surveillance.

One particularly controversial authority created by the Patriot Act is the National Security Letter. Without subpoena, the government is empowered to demand non- content data from Internet service providers, communication companies, and busi- nesses about their clients. Again, non content data include web sites visited, telephone numbers called, and e-mail addresses. Thousands, in some years tens of thousands, of NSLs have been issued yearly since 9/11. NSLs come with a “gag” order. That is, the recipient of the NSL is ordered, under criminal penalty, to not disclose to anyone, in- cluding the client who is named in the NSL, that the letter has been received. A federal district judge found this and other provisions of the NSL law to be contrary to the First Amendment’s protection of free speech and the Fourth Amendment in 2013.39

FISC is aimed at foreign governments and its agents, abroad. As you can see, the authority of the United States to spy on U.S. persons abroad is limited to when U.S. persons are acting as foreign agents and when engaged in terrorism. If the United States wants to conduct a search within the United States, the Fourth Amendment and Title III rules you have already learned apply, even if the underlying offense is a viola- tion of a national security law. If the government acquires otherwise protected infor- mation during an otherwise legitimate surveillance, the information is to be destroyed unless the contents indicate a threat of serious bodily harm or death to any person.

An extended discussion of national security law is beyond the scope of a criminal law and procedure text. Be aware, however, that many other statutes, executive orders, and judicial decisions exist defining this rapidly evolving area of law.

PretrIal IdentIfICatIon ProCedures Law enforcement officers use a variety of techniques to identify a person as a criminal, such as eyewitness identifications, fingerprinting, blood tests, and, recently, deoxyribo- nucleic acid (DNA) tests. The use of any of these procedures raises certain constitutional issues, such as the right to be free from self-incrimination and the right to counsel.

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Chapter 13: Interrogation, Electronic Surveillance, and Other Police Practices 505

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There is also another concern: reliability. Eyewitness identification, though power- ful, has a few inherent problems. First, each person will testify to his or her perception of an event, and people often perceive the same event differently. Second, not every person will use the same language to describe what was witnessed. Third, a witness may simply have a faulty memory and unintentionally testify to an untruth. Fourth, for a variety of reasons, a witness may intentionally lie.

Scientific testing may also prove to be invalid or unreliable. How accurate is the test when performed properly? Was the test performed properly in this case? Is the evidence tested actually the defendant’s? These types of questions are asked of expert witnesses who testify to the results of scientific testing. This discussion begins with eyewitness identification procedures.

Eyewitness Identification An eyewitness’ identification of an offender is often a key piece of evidence in criminal cases. It is generally regarded that eyewitness testimony is one of the most persuasive forms of evidence that can be presented to jurors.

Fairness in Identification There are two competing values concerning the reliability of evidence at trial. The first concerns the nature of the jury trial. The system is constructed around the jury as the finder of fact. In the extreme, jurors should hear all evidence and be trusted to distinguish between the reliable and unreliable. The other value is one of fair process, as enshrined in the due process clauses. Due process demands that seriously unreliable evidence with withheld from a jury.

The Supreme Court has issued several decisions that are intended to establish the balance of these competing values. In Stoval v. Denno, 388 U.S. 293 (1967), the Supreme Court found that the Due Process Clauses of the Fifth and Fourteenth Amendments prohibit identifications that are so unnecessarily suggestive that there is a real chance of misidentification. In addition to being impermissibly suggestive, an identification must be unreliable to be excluded.40 Wade illustrates these concepts as applied to lineups.

The question here is whether courtroom identifica- tions of an accused at trial are to be excluded from evidence because the accused was exhibited to the witness before trial at a post-indictment lineup con- ducted for identification purposes without notice to and in the absence of the accused’s appointed counsel.

The federally insured bank in Eustace, Texas, was robbed on September 21, 1964. A man with a small strip of tape on each side of his face entered the bank, pointed a pistol at the female cashier and the vice president, the only persons in the bank at the time, and forced them to fill a pillowcase with

UNITeD sTATes V. WADe 338 U.S. 218 (1967)

(continued)

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506 Part II Criminal Procedure

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the bank’s money. The man then drove away with an accomplice who had been waiting in a stolen car outside the bank. On March 23, 1965, an indictment was returned against respondent, Wade, and two others for conspiring to rob the bank, and against Wade and accomplice for the robbery itself.

Wade was arrested on April 2, and counsel was appointed to represent him on April 26. Fifteen days later an FBI agent, without notice to Wade’s lawyer, arranged to have the two bank employees observe a lineup made up of Wade and five or six other pris- oners and conducted in a courtroom of the local county courthouse. Each person in the line wore strips of tape such as allegedly worn by the robber and upon direction each said something like “put the money in the bag,” the words allegedly uttered by the robber. Both bank employees identified Wade in the lineup as the bank robber.

At trial, the two employees, when asked on direct examination if the robber was in the court- room, pointed to Wade. The prior lineup identifi- cation was then elicited from both employees on cross examination. . . . But the confrontation com- pelled by the State between the accused and the victim or witnesses to a crime to elicit identification evidence is peculiarly riddled with innumerable dangers and variable factors which might seriously, even crucially, derogate from a fair trial. The vaga- ries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mis- taken identification. . . . The identification of strang- ers is proverbially untrustworthy. . . . A major factor contributing to the high incidence of miscarriage of justice from mistaken identification has been the de- gree of suggestion inherent in the manner in which the prosecution presents the suspect to witness for pretrial identification. A commentator has ob- served that “[t]he influence of improper suggestion upon identifying witnesses probably accounts for more miscarriages of justice than any other single

factor—perhaps it is responsible for more such errors than all other factors combined.”. . . Sugges- tion can be created intentionally or unintentionally in many subtle ways. And the dangers for the sus- pect are particularly grave when the witness’ oppor- tunity for observation was insubstantial, and thus his susceptibility to suggestion the greatest.

Moreover, “[i]t is a matter of common experience

that, once a witness has picked out the accused at the

lineup, he is not likely to go back on his word later

on, so that in practice the issue of identity may (in the

absence of other relevant evidence) for all practical

purposes be determined there and then, before the

trial.”. . .

What facts have been disclosed in specific cases about the conduct of pretrial confrontations for identification illustrate both the potential for substantial prejudice to the accused at that stage and the need for its revelation at trial. A commenta- tor provides some striking examples:

In a Canadian case . . . the defendant had been picked

out of a lineup of six men, of which he was the only

Oriental. In other cases, a black-haired suspect was

placed among a group of light-haired persons, tall

suspects have been made to stand with short non-

suspects, and, in a case where the perpetrator of

the crime was known to be a youth, a suspect under

twenty was placed in a lineup with five other per-

sons, all of whom were forty or over.

Similarly, state reports, in the course of describing prior identifications admitted as evidence of guilt, reveal numerous instances of suggestive proce- dures, for example, that all in the lineup, but the suspects were known to the identifying witness, that the other participants in a lineup were grossly dissimilar in appearance to the suspect, that only the suspect was required to wear distinctive cloth- ing which the culprit allegedly wore. . . .

UNITeD sTATes V. WADe (c o nt i nu e d)

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Since it appears that there is grave potential for prejudice, intentional or not, in the pretrial lineup, which may not be capable of reconstruc- tion at trial, and since presence of counsel can often avert prejudice and assure a meaningful confrontation at trial, there can be little doubt that for Wade the post--indictment lineup was a critical

stage of the prosecution at which [he] was [entitled to counsel]. . . .

[The Court then concluded that in-court identi- fications must be excluded if they follow a lineup at which a defendant is not permitted counsel, unless the in-court identification has an independent origin.]

UNITeD sTATes V. WADe (c o nt i nu e d)

Evidence is not automatically excluded even when police employ an identification procedure that is unnecessarily suggestive. Instead the trial court is to make an inde- pendent determination whether the process was unreliable, e.g. created a substantial likelihood of misidentification. If so, the identification is to be excluded. When mak- ing the substantial likelihood of misidentification decision, a court is to examine the “totality of the circumstances” surrounding the identification. Examples of impermis- sibly suggestive were mentioned in the Wade opinion. For example, if a witness states that a white male committed a crime, it would be improper to exhibit four black men and one white man in a lineup.

Wade, Stoval, and these other decisions defining this area of law were issued in the 1970s. Subsequently a wealth of research in human memory has called the reli- ability of eyewitness identification into question. The problems of unconscious bias, blurred memory, the ways memories are stored and retrieved, and the phenomena of reconstructed memory make memory fallible and often unreliable.

The advent of forensic identification procedures that are highly accurate, such as DNA testing, have been used to establish the innocence of many people whose convic- tions were proven, often largely, by eyewitness identification. Eyewitness identification played a role in the conviction of as many as 75% of convictions that were overturned through DNA testing.41 The problem of wrongful convictions, because of eyewitness misidentification and other causes, is so acute that a non profit group formed to raise funds, provide legal defense, and support research. The Innocence Project reports that more than 250 people have been exonerated using DNA testing since 1989.42

Consequently many people have called for a more critical review of eyewitness testimony than required by the 1970s decisions. The Court rejected this position in Perry v. New Hampsire (2012). The defendant in this case urged the Court to modify the test from requiring proof police created a suggestive situation to any suggestive circumstance, police created or not. The defendant pointed to the large number of studies that demonstrate the unreliability of eyewitness identifications in support of his position. Rejecting the proposition the Court found that (1) one of the purposes of the unnecessarily suggestive rule it had created was to deter police misconduct and

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508 Part II Criminal Procedure

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that extending the protection in the manner suggested would not achieve this goal; (2) juries should be trusted to determine the reliability of evidence in all but the most extreme cases; (3) trial judges have the authority, both constitutionally and through rules of evidence, to exclude evidence that is misleading or prejudicial; and (4) the trial judge instructed the jury in how to evaluate the reliability of the eyewitness testimony.

lineups and showups A lineup is where the police exhibit a group of people, among whom is the suspect, to a witness or victim for identification as the criminal. A one-man showup is an exhibition of one person to a witness or victim for identification as the criminal.

In practice, police first conduct a lineup and then, if the suspect is identified, the witness is asked at trial to testify that he or she identified the perpetrator of the crime at the lineup. Therefore, if the initial identification is faulty, the subsequent in-court identification is also faulty. Even if the witness is asked to identify anew the perpetra- tor of the crime, such an identification is tainted by the witness’s earlier identification.

One-man showups, obviously, are more suggestive of guilt than lineups are. As such, they should be used with caution. Generally, a one-man showup should occur soon after the crime (minutes or hours). If there is time to organize a lineup, this is the preferable method of identification procedure.

The Right to Counsel Wade mandates that counsel be provided at pretrial lineups and showups. For years it was unknown whether this meant all pretrial lineups and showups or just those after the Sixth Amendment attaches. Kirby v. Illinois, (1972)43 resolved this dis- pute by requiring counsel only after initiation of “adversary judicial proceedings— whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.”

self-Incrimination It is not violative of the Fifth Amendment’s privilege against self-incrimination for a defendant to be compelled to appear in a lineup. The privilege against selfincrimina- tion applies to “testimony” and not to physical acts, such as walking, gesturing, measur- ing, or speaking certain words for identification purposes.44 If a defendant has changed in appearance, he or she may be made to shave, to don a wig or hairpiece, or wear a certain article of clothing.

The question under the Fifth Amendment is whether the act requested is “communicative.” If so, then the defendant may not be compelled to engage in the act. If not, the opposite is true.

Photographs Today, witness identification through photo arrays are more common than lineups. The due process test discussed earlier applies to the use of photos; that is, the event must not be impermissibly suggestive and unreliable. The showing of one picture is likely to be determined improper, absent an emergency. As is true of lineups, the people

lineup

■ A group of persons,

placed side by side in a

line, shown to a witness of

a crime to see if the witness

will identify the person

suspected of committing

the crime. A lineup should not be staged so that it is

suggestive of one person.

showup

■ A pretrial Identification

procedure in which only

one suspect and a witness

are brought together.

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in the photos should be similar in appearance. Also, a “mug shot” (a picture taken by law enforcement agencies after arrest) of the accused should not be mixed with ordi- nary photos of nonsuspects. Nor should the photos be presented in such a manner that the defendant’s picture stands out.

The Supreme Court has determined that there is no right to counsel at a photo identification session, either before initiation of the adversary judicial proceeding or thereafter.

Forensic Identification Procedures Law enforcement officials may use scientific methods of identification to prove that a defendant committed a crime. Fingerprinting, blood tests, genetic tests (deoxyribo- nucleic acid, or DNA, testing), voice tests, and handwriting samples are examples of such techniques.

Such tests are not critical stages of the criminal proceedings, and, accordingly, there is no right to counsel. There is also no right to refuse to cooperate with such testing on Fifth Amendment grounds, because the defendant is not being required to give testimony. However, if a test involves an invasion of privacy, then the Fourth Amendment requires probable cause before the procedure may be forced on an unwilling defendant.

Confrontation and Cross-examination Clause issues are raised when forensic experts testify as to what other experts have found or analyzed. See Chapter 15 for a more thorough discussion of these issues.

Validity and Reliability Scientific evidence must be reliable before it may be introduced at trial. In a landmark case, Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), it was held that scientific techniques must be generally accepted as valid and reliable by the scientific commu- nity to be admissible. Frye was the law from 1923 until the Supreme Court issued Daubert v. Merrell Dow Pharmaceuticals, 113 S. Ct. 2786 (1993). Daubert changed the standard of admissibility from acceptance in the scientific community to scientific validity. Under this new standard, the trial judge is required to make a preliminary determination that the proffered evidence is valid before it may be presented to a jury. In making this decision, the trial judge is to consider the following factors:

1. Whether the evidence or theory has, or can be, tested. 2. Whether it has been reviewed and tested by other scientists. 3. Whether the method has been published and the quality of the publication(s)

in which it is found. 4. Whether its error rate and other potential defects are known. 5. Whether standards and protocols for its use have been established. 6. Whether its use is widely accepted in the relevant scientific community.

Techniques that are experimental and not highly reliable are not admissible. A few common scientific techniques are discussed here. Note that the results of a specific test

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564 part ii Criminal Procedure

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What appeared to be clear and settled law was dealt a confusing blow in 2012. In a 5-4 decision with no one rationale commanding a majority of justices, the Court decided in Williams v. Illinois10 that the testimony of a forensic DNA expert who testi- fied that the DNA of semen taken from a vaginal swab of a rape victim and analyzed at a private lab, Cellmark, which matched the defendant, was admissible. This expert did not conduct the testing and most likely had never been in the Cellmark lab.

Because the justices were divided, it is difficult to identify exactly how they distin- guished the case from Crawford, Melendez-Diaz, and Bullcomings. But a few ideas can be extracted from the opinions. First, the testing occurred before the defendant had been identified as a suspect. The DNA profile had been built in order to identify an un- known rapist. Accordingly, the profile was not aimed at the defendant. Accordingly, the important purpose of enabling defendants to cross-examine witnesses “against them” would not have been satisfied by prohibiting the expert’s testimony.

Second, the expert’s statements were not hearsay. She didn’t testify to prove the matter asserted—that is, she didn’t testify as to the testing or the contents of the testing report. The Court summarized the expert’s testimony as such:

In order to assess petitioner’s Confrontation Clause argument, it is helpful to inventory exactly what Lambatos said on the stand about Cellmark. She testified to the truth of the following matters: Cellmark was an accredited lab; the ISP occasionally sent foren- sic samples to Cellmark for DNA testing; according to shipping manifests admitted into evidence, the ISP lab sent vaginal swabs taken from the victim to Cellmark and later received those swabs back from Cellmark; and, finally, the Cellmark DNA profile matched a profile produced by the ISP lab from a sample of petitioner’s blood. Lamba- tos had personal knowledge of all of these matters, and therefore none of this testimony infringed petitioner’s confrontation right.

Third, the case was tried before a judge. The law assumes that judges have a better understanding of the law and are better at categorizing evidence and not considering it for purposes beyond what is permitted than jurors. In this case the expert’s testimony was not admitted to prove that the quality of the testing and the judge is presumed to have not considered it for such purposes. Whether the decision would have been different if the case had been tried before a jury is unclear. But it easy to imagine that many jurors would interpret the testimony as proving the guilt of the defendant. The full impact of this decision will be revealed in the years to come.

The Presumption of Innocence/Burden of Proof One of the most basic rights underlying the right to a fair trial is the presumption of innocence. All those accused must be proven guilty by the government. Criminal defendants have no duty to defend themselves and may remain silent throughout the trial. In fact, the government is prohibited from calling defendants to testify, and defen- dants cannot be made to decide whether they will testify at the start of the trial.11 The fact that a defendant chooses not to testify may not be mentioned by the prosecutor to the jury. Defendants may testify in their own behalf. If so, they are subject to full

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Chapter 15: Trial 565

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cross-examination by the prosecutor. The Fifth Amendment right to be free from self- incrimination is discussed more fully in Chapter 9.

The standard imposed upon the government in criminal cases is to prove guilt beyond a reasonable doubt. A doubt that would cause a reasonable or prudent person to question the guilt of the accused is a reasonable doubt. Although not precisely quan- tified, beyond a reasonable doubt is greater than the civil preponderance (51 percent likely) and less than absolute (100 percent confidence of guilt). See the standards of proof graphic in Chapter 12 to refresh your understanding of the different standards that are employed in criminal law. The prosecution must prove every element of the charged crime beyond a reasonable doubt. The reasonable doubt standard is an im- portant feature of the accusatorial system of the United States and is required by due process.12 A juror must vote for acquittal if he or she harbors a reasonable doubt.

To further the presumption of innocence, judges must be careful not to behave in a manner that implies to a jury that a defendant is guilty.

The court and government must be careful not to create a physical setting that im- plies guilt. The Supreme Court has stated that the presence of a defendant at a jury trial in prison clothing is prejudicial.13 In the Young case, a federal appellate court reviewed the use of “prisoner docks” for a Sixth Amendment violation. Similarly, a criminal defen- dant also has a right to be free from appearing before the jury in handcuffs or shackles.

The government’s needs are balanced against the defendant’s, however. In Holbrook v. Flynn, 475 U.S. 560 (1986), the Court stated that not all practices that single out the defendant are excessively prejudicial. The Court held that some prejudice may exist. The question is whether there is unacceptable prejudice that is not justified by governmental necessity. Using this standard, the Court allowed a conviction to stand where the defendant objected to the presence of four police officers in the first row of the spectator gallery, directly behind the defendant, during trial.

Trial judges also have a responsibility to monitor private conduct in the courtroom to ensure unacceptable unfairness to the defendant does not happen. For example, spectators are not permitted to express opinions about the case to jurors. Whether more subtle behaviors, such as wearing a button with a photo of the victim, are unacceptably prejudicial remains to be seen.14

This right to be free of restraint is not absolute. Judges have the authority to take whatever measures are necessary to assure safety in the courtroom and to advance the administration of justice. Accordingly, a defendant who is disorderly may be expelled from the trial. However, before exclusion is ordered the court should consider other alternatives. Defendants who are threatening may be restrained, and those who verbally interfere with the proceeding may be gagged.15

The Right to Speedy Trial All criminal defendants have a right to a speedy trial. It is the Sixth Amendment, as extended by the Fourteenth Amendment to the states, that guarantees speedy trial. This right has a history dating back to at least the Magna Carta.

To date, the United States Supreme Court has not set a specific number of days within which trial must be conducted. Rather, the Court said in Barker v. Wingo that four factors

beyond a reasonable doubt

■ The level of proof

required to convict a

person of a crime. Precise

definitions vary, but moral

certainty and firm belief

are both used. Beyond a

reasonable doubt is not

absolute certainty. This is

the highest level of proof

required in any type of trial.

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must be considered when determining if a defendant has enjoyed a speedy trial. First, the length of the delay; second, the reason for the delay; third, whether the defendant has asserted the right to a speedy trial; fourth, how seriously the defendant was prejudiced.16

Time for speedy trial begins once the defendant is arrested or formally charged.17 If a defendant is charged by sealed indictment, speedy trial does not start until the indictment has been opened.

Dismissal with prejudice is the remedy for violation of speedy trial. That is, the charge is dismissed and may not be refiled by the prosecutor.

All the states and the national government have enacted speedy trial acts. The Speedy Trial Act of 197418 is the federal statute. That act requires that individuals be formally charged within 30 days from the date of arrest and tried within 70 days of the filing date of the information or indictment, or of the date the defendant had the initial appearance before the court that will try the case, whichever is later.

[The Court included a footnote which stated that a prisoner dock is “a box approximately four feet square and four feet high. It is open at the top so that the defendant’s head and shoulders can be seen when he or she is seated. The dock is placed

typically at the center of the bar enclosure which separates the spectator’s section from that portion of the courtroom reserved for trial principals. The dock is usually fifteen to twenty feet behind coun- sel table, and is sometimes on a raised platform.”]

YOUNG V. CALLAHAN 700 F.2d 32 (1st Cir. 1983)

Exhibit 15–1 SIXTH AMENDMENT TRIAL RIGHTS

Right to Counsel

Sixth Amendment Trial Rights

Right to Confrontation

Public Trial

Jury Trial Speedy Trial

Co py

rig ht

en ga

ge L

ea rn

in g®

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Chapter 15: Trial 567

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In January of 1979 appellant was tried in Mas- sachusetts Superior Court on one count of assault and battery with a dangerous weapon and two counts of murder. The jury returned a guilty verdict on the assault and battery but was unable to reach a verdict on the two murder indictments. In a new trial in February of 1979, appellant was found guilty of second-degree murder on both counts. These convictions were affirmed by the Massachusetts Supreme Judicial Court. . . .

Prior to appellant’s second trial, counsel moved that he be allowed to sit at counsel table rather than in the prisoner’s dock on the grounds that “forc- ing him to sit in the prisoner’s dock would deprive him of his constitutional rights to a fair trial, to the presumption of innocence, to access to counsel, non-suggestive eyewitness identifications, and due process of law.” That motion was accompanied by an affidavit from appellant’s trial counsel aver- ring, based on his own observations and those of corrections officers during appellant’s two years of

incarceration and on appellant’s conduct at the first trial, that “allowing [appellant] to sit at counsel table will not present any hazards to the orderly judicial process or to the security of its personnel,” and that the trial of the case would involve a substantial amount of testimony concerning acts and conduct of the appellant over a several-day period and would thus “require consultation with the defendant.” . . .

In once again evaluating for constitutional er- ror the confinement of an accused to the prisoner’s box, we reiterate . . . that such confinement, like ap- pearance in prison attire, is a “constant reminder of the accused’s condition” which “may affect a juror’s judgment,” eroding the presumption of innocence which the accused is due. . . .

The prisoner’s dock, like other physical restraints, should thus be employed only when “the trial judge has found such restraint reasonably necessary to maintain order” and when cured by an instruction to the “jurors that such restraint is not to be considered in assessing the proof and determining guilty.”

YOUNG V. CALLAHAN (c o nt i nu e d)

To avoid prejudice by having a trial before a defendant has had an opportunity to prepare a defense, the statute provides that trial shall not occur for 30 days, unless the defendant consents to an earlier date.

The statute specifies certain delays that are excluded from computing time for purpose of speedy trial. A few of the periods excluded by the Speedy Trial Act of 1974 are when the defendant is a fugitive; when trial is delayed because an issue is on appeal; when delays are caused by motions of the parties; and when delays result from mental examinations of the defendant.

The Speedy Trial Act of 1974 gives the trial court the discretion to decide whether violation of its provisions justifies a dismissal with or without prejudice. Factors that must be considered are the seriousness of the offense, the reason for delay, other facts of the case, and the impact of reprosecution on the administration of justice.19

Because the United States Supreme Court has not established specific time re- quirements for speedy trial, each state has its own time requirements. Of course, states must comply with the requirements of Barker v. Wingo. Most states have speedy

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trial provisions in their constitutions, which are similar, if not identical, to the Sixth Amendment. Other states set their speedy trial requirements out in statute or court rules. Time requirements differ, but trial within six months is common.

The Right to Counsel The Sixth Amendment to the U.S. Constitution provides that “in all criminal pros- ecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense.” The right to counsel is one of the most fundamental rights guaranteed to criminal defendants and is fully applicable to the states.

The right to the assistance of counsel is found not only in the Sixth Amend- ment but also in the Fifth and Fourteenth Amendments. These alternative sources are discussed later in the particular contexts within which they apply.

Indigency It has always been clear that criminal defendants are entitled to retain the attorney of their choice. It was not until 1923 that the United States Supreme Court recognized a constitutional right to appointed counsel for indigent defendants in Powell v. Alabama, 287 U.S. 45 (1923).

In the Powell case (commonly known as the Scottsboro case), nine young black males were charged with the rape of two white girls. Within one week of arrest, the defendants were tried. Eight of the “Scottsboro boys” were convicted and sentenced to death. The defendants appealed, claiming that they should have been provided counsel. The Supreme Court agreed.

However, the right to appointed counsel in Powell was not founded upon the Sixth Amendment, but upon the Fourteenth. The Court reasoned that the absence of counsel deprived the defendants of a fair trial, and, accordingly, violated the defendants’ due pro- cess rights. This decision was narrow: It applied only to capital cases where the defendant was incapable of preparing an adequate defense and did not have the resources to hire an attorney.

The due process right to counsel was subsequently extended to all situations in which a defendant would not have a fair trial in the absence of defense counsel. Whether counsel was required depended on each particular case’s “totality of facts.” If denial of counsel was “shocking to the universal sense of justice,” then the defendant’s right to a fair trial, as guaranteed by the Fourteenth Amendment, was violated.20 The Court refused to extend the right to counsel to all state criminal proceedings. Cases that involve complex legal issues or a defendant of low intelligence are the types of situation that required the appointment of counsel under the Betts due process standard.

In 1938 the Court decided Johnson v. Zerbst, 304 U.S. 458 (1938), which held that the Sixth Amendment guarantees a right to counsel. The Sixth Amendment right to counsel was found to be broader than the right to counsel announced in Powell, as it applied to all criminal prosecutions. However, Zerbst did not apply to state proceed- ings. Eventually, the Sixth Amendment right to counsel was extended to all state felony proceedings, in Gideon v. Wainwright.

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Subsequently, the right to counsel was again extended to encompass all criminal cases punished with a jail term. Whether the crime is labeled a misdemeanor or felony is not dispositive of the right-to-counsel issue.21 In the 2002 case, Alabama v. Shelton, the Supreme Court extended the right again. In Shelton, the right to counsel was found

Petitioner was charged in Florida state court with having broken and entered a poolroom with intent to commit a misdemeanor. This offense is a felony under Florida law. Appearing in court without funds and without a lawyer, petitioner asked the court to appoint counsel for him, whereupon the following colloquy took place:

THE COURT: Mr. Gideon, I am sorry, but I can- not appoint Counsel to represent you in this case. Under the laws of the State of Florida, the only time the Court can appoint Counsel to represent a defen- dant is when that person is charged with a capital offense. I am sorry, but I will have to deny your re- quest to appoint Counsel to defend you in this case.

THE DEFENDANT: The United States Supreme Court says I am entitled to be represented by Counsel.

Put to trial before a jury, Gideon conducted his defense about as well as could be expected from a layman. He made an opening statement to the jury, cross-examined the State’s witnesses, presented witnesses in his own defense, declined to testify himself, and made a short argument “emphasizing his innocence to the charge contained in the Infor- mation filed in this case.” The jury returned a ver- dict of guilty, and petitioner was sentenced to five years in the state prison. Since 1942, when Betts v. Brady, 316 U.S. 455, was decided by a divided Court, the problem of a defendant’s federal consti- tutional right to counsel in a state court has been a continuing source of controversy and litigation in both state and federal courts. . . . Since Gideon was proceeding in forma pauperis, we appointed counsel to represent him and requested both sides

to discuss in their briefs and oral arguments the following: “Should this Court’s holding in Betts v. Brady . . . be reconsidered? . . .

Governments, both state and federal, quite properly spend vast sums of money to establish machinery to try defendants accused of crime. Law- yers to prosecute are everywhere deemed essential to protect the public’s interest in an orderly society. Similarly, there are few defendants charged with crime, few indeed, who fail to hire the best lawyers they can get to prepare and present their defenses. That government hires lawyers to prosecute and defendants who have the money to hire lawyers to defend are the strongest indications of the wide- spread belief that lawyers in criminal courts are ne- cessities, not luxuries. The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours. From the very beginning, our state and national constitutions and laws have laid great em- phasis on procedural and substantive safeguards designed to assure fair trials before impartial tribu- nals in which every defendant stands equal before the law. This noble idea cannot be realized if the poor man charged with crime has to face his accus- ers without a lawyer to represent him. . . . The Court in Betts v. Brady departed from sound wisdom upon which the Court’s holding in Powell v. Alabama rested. Florida, supported by two other States, has asked that Betts v. Brady be left intact. Twenty-two states, as friends of the Court, argue that Betts was “an anachronism when handed down” and that it should now be overruled. We agree. . . . Reversed.

GIDEON V. WAINWRIGHT 372 U.S. 335 (1963)

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for a convictee who was sentenced to imprisonment, even though the entire sentence was suspended to probation.

In some cases, it may be to the prosecution’s advantage for a defendant to have counsel, even though a sentence of imprisonment is not available for a first conviction, but is available for subsequent convictions. This is because a sentence may not be en- hanced to include jail time based on a prior conviction where the defendant possessed a right to, but was denied, counsel.22 For example, the penalty for first-offense drunk driving is not punished by a term in jail; however, subsequent violations are. If Jack is arrested and convicted without counsel for his first offense, he may not be sentenced to jail time for his second drunk driving conviction, because he did not have counsel during his first trial.

To qualify for appointed counsel, a defendant does not have to be financially desti- tute. It need only be shown that the defendant’s financial situation will prevent him or her from being able to retain an attorney. An indigent defendant does not have a right to choose the appointed attorney; this decision falls within the discretion of the trial court. See Exhibit 15–2 for a summary of when the right to counsel attaches.

Exhibit 15–2 THE RIGHT TO COUNSEL

Under Miranda v. Arizona, the Fifth Amendment guarantees counsel at all times that defendant is in custody and interrogated.

Once the adversary judicial proceeding is initiated, the Sixth Amendment guarantees defendants the right to counsel at all critical stages.

Investigation by law

enforcement Arrest Formal

charges Trial Sentencing Appeal

If a state provides an appeal by right, the Fourteenth Amendment guarantees the right to counsel. If an appeal is discretionary, there is no right to counsel.

The Sixth Amendment guarantees the right to counsel in some cases, as does the Fourteenth Amendment.

Probation Revocation

Co py

rig ht

en ga

ge L

ea rn

in g®

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Effective Assistance of Counsel Defendants are entitled not only to have an attorney but also to receive the “effective assistance of counsel.” On appeal, defendants may challenge their convictions by claim- ing that at a lower level (trial or appellate) they did not have effective counsel.

To succeed with such a claim, two facts must be shown. First, the representation must be extremely inadequate. Second, the defendant must show that he or she was

This case concerns the Sixth Amendment right of an indigent defendant charged with a misdemeanor punishable by imprisonment, fine, or both, to the assistance of court-appointed counsel. Two prior decisions control the Court’s judgment. First, in Argersinger v. Hamlin, 407 U.S. 25, 92 S. Ct. 2006, 32 L.Ed.2d 530 (1972), this Court held that defense counsel must be appointed in any criminal prose- cution, “whether classified as petty, misdemeanor, or felony,” . . . “that actually leads to imprisonment even for a brief period,” . . . Later, in Scott v. Illinois, 440 U.S. 367, 373–374, 99 S. Ct. 1158, 59 L.Ed.2d 383 (1979), the Court drew the line at “actual imprison- ment,” holding that counsel need not be appointed when the defendant is fined for the charged crime, but is not sentenced to a term of imprisonment.

Defendant-respondent LeReed Shelton, con- victed of third-degree assault, was sentenced to a jail term of 30 days, which the trial court immedi- ately suspended, placing Shelton on probation for two years. The question presented is whether the Sixth Amendment right to appointed counsel, as de- lineated in Argersinger and Scott, applies to a defen- dant in Shelton’s situation. We hold that a suspended sentence that may “end up in the actual deprivation of a person’s liberty” may not be imposed unless the defendant was accorded “the guiding hand of counsel” in the prosecution for the crime charged.

After representing himself at a bench trial in the District Court of Etowah County, Alabama, Shelton was convicted of third-degree assault, a

class A misdemeanor carrying a maximum pun- ishment of one year imprisonment and a $2000 fine . . . He invoked his right to a new trial before a jury in Circuit Court. . . . where he again appeared without a lawyer and was again convicted. The court repeatedly warned Shelton about the problems self- representation entailed, see App. 9, but at no time offered him assistance of counsel at state expense.

The Circuit Court sentenced Shelton to serve 30 days in the county prison. As authorized by Ala- bama law, however, . . . the court suspended that sentence and placed Shelton on two years’ unsu- pervised probation, conditioned on his payment of court costs, a $500 fine, reparations of $25, and res- titution in the amount of $516.69.

Shelton appealed his conviction and sentence on Sixth Amendment grounds. . . .

. . . A suspended sentence is a prison term im- posed for the offense of conviction. Once the prison term is triggered, the defendant is incarcerated not for the probation violation, but for the under- lying offense. The uncounseled conviction at that point “result[s] in imprisonment. . . . This is pre- cisely what the Sixth Amendment, as interpreted in Argersinger and Scott, does not allow. . . .

Satisfied that Shelton is entitled to appointed counsel at the critical stage when his guilt or innocence of the charged crime is decided and his vulnerability to imprisonment is determined, we affirm the judgment of the Supreme Court of Alabama. It is so ordered.

ALABAMA V. SHELTON 535 U.S. 654 (2002)

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actually harmed by the lack of adequate counsel. So, if an appellate court determines that a defendant would have been convicted with the best of attorneys, the defendant’s claim of inadequate counsel fails.

A Sixth Amendment claim of ineffective assistance of counsel can take many forms. Incompetence of counsel is often claimed, but rarely successful. Attorneys are expected to make the legal and tactical decisions of the defense. The fact that defense counsel rendered incorrect legal advice is not determinative. The issue is whether the defendant’s representation was shockingly substandard.

A defendant has a right to the “undivided loyalty” of defense counsel. Hence, it is common to have ineffective assistance of counsel claims where one attorney is represent- ing codefendants. In Cuyler v. Sullivan, 446 U.S. 335 (1980), it was held that an inef- fective assistance of counsel claim based upon an alleged conflict of interest will succeed only if the defendant can show that the conflict “adversely affected” his or her rights.

Also, the accused has a right to confer with counsel to prepare a defense. If a court denies a defendant access to his or her counsel, a Sixth Amendment claim may be made.

Governmental eavesdropping on a defendant’s conversation with his or her coun- sel is also improper and violative of the Sixth Amendment.

The Right to Self-Representation In Faretta v. California, 422 U.S. 806 (1975), the right to self-representation was es- tablished. The Supreme Court recognized that the assistance of trained legal counsel is essential to preparing and presenting a defense. However, in balance, the Court found that a defendant’s right of choice has greater importance. Therefore, defendants may choose to act as their own counsel (pro se), even though the decision increases the prob- ability of a conviction.

The record must clearly show that a defendant who has chosen to proceed pro se has done so voluntarily and knowingly. The defendant “must be made aware of the dangers and disadvantages of self-representation.” Whether the defendant possesses any legal training or education is not relevant.

Trial judges are permitted to appoint “standby counsel” for trial. This attorney attends the trial and is available to counsel the defendant or take over the defense, if necessary. The Court later approved the practice of appointing standby counsel over the objection of the defendant. This is routinely done in felony cases in which the defendant has opted to proceed pro se.

The right to self-representation is not absolute. A defendant who engages in disruptive behavior during the proceeding may be relieved of pro se status. Standby counsel, if appointed, may be ordered to complete the trial.

The Scope of the Right Through Gideon, the right to counsel in criminal prosecutions was extended to the states. Argersinger made it clear that counsel must be provided in all cases in which the defendant is sentenced to actual imprisonment. But when does the right begin?

The United States Supreme Court has stated that the Sixth Amendment right to counsel applies to all critical stages of a criminal prosecution. This definition requires that

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a “prosecution” be initiated before the right to counsel, under the Sixth Amendment, attaches. Accordingly, the Sixth Amendment does not apply to juvenile proceedings, nor to administrative hearings such as parole determination and revocation.

The right starts whenever the “adversary judicial proceeding” is initiated. Police contacts prior to the initiation of an adversary judicial proceeding are not covered by the Sixth Amendment.

In determining what constitutes a critical stage, courts focus on “whether sub- stantial rights of the defendant may be affected.” The greater the contact between the prosecutor and the defendant, the more likely the event is at a critical stage.

The first critical stage is normally the initial appearance or the arraignment. Courts have also determined that a defendant may be entitled to counsel at a police lineup, sen- tencing, preliminary hearing, and during a probation revocation hearing. Once charges are filed, all interrogations of the defendant by the government are critical stages.

The Sixth Amendment is not the only constitutional provision assuring counsel. The Fifth Amendment’s right to be free from self-incrimination also guarantees coun- sel in some instances, as does the Fourteenth Amendment’s Equal Protection and Due Process Clauses.

Trial ProceDure Voir Dire The first stage of trial is the voir dire. This is a French phrase that translates “look speak” (to speak the truth). Voir dire is also known as jury selection.

The process of selecting a jury differs among the jurisdictions. In all jurisdictions, prospective jurors are asked questions bearing upon their individual ability to serve fairly and impartially. Each state differs in how this information is obtained. In many, the judge is responsible for asking most of the questions. In others, the judge makes only a few brief inquiries, and the lawyers do most of the questioning.

There are two ways of eliminating a juror. First, if one of the attorneys believes that a juror could not be fair and impartial, the juror can be challenged for cause. If the judge agrees, the juror is released. An unlimited number of jurors may be eliminated for cause.

In addition to challenges for cause, a juror may be eliminated by a party using a peremptory challenge. Each party is given a specific number of peremptory challenges at the start of the trial and may strike jurors until that number is exhausted. A party is free to eliminate, without stating a reason, any potential juror. However, a juror may not be eliminated because of race.23

In the federal system, both defendant and prosecutor have 20 peremptory strikes in death cases and 3 in misdemeanors; in noncapital felony cases the defendant gets 10 and the government 6.24 States have similar rules. The authority of the parties to use peremptory challenges is nearly absolute. Two limitations exist, though—the use of a challenge to eliminate a prospective juror for race and sex. Such criteria violate the Fifth and Fourteenth Amendments’ equal protection guarantees.25 Other than these

voir dire examination

■ (French) “To see,

to say”; “to state the

truth.” The preliminary

in-court questioning of

a prospective witness

(or juror) to determine

competency to testify (or

suitability to decide a case).

[pronounce: vwahr deer]

challenge for cause

■ A formal objection to

the qualifications of a

prospective juror or jurors.

peremptory challenge

■ The automatic

elimination of a potential

juror by one side before

trial without needing to

state the reason for the

elimination.

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582

Chapter 16 Chapter Outline Sentencing

Sentencing Procedure Forms of Punishment Habitual Offender Statutes

Postconviction Remedies Appeal Habeas Corpus

Ethical Considerations: Attorney Discipline by the Numbers

Chapter Objectives

After completing this chapter you should be able to:

• describe and apply to fact scenarios the laws of punishment, including the constitutional limitations of punishment.

• describe the sentencing process and identify the constitutional rights defendants possess at sentencing.

• connect and apply the various forms of punishment to the objectives of criminal justice.

• identify and describe the law of appeals and postconviction relief.

• identify the material facts and legal issues in nearly all of the cases you read, describe the courts’ analyses and conclusions in the cases, and demonstrate the ability to synthesize and think critically about the law of the subject.

SentenCing and appeal

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Sentencing After conviction, sentence must be imposed. For many misdemeanors and nearly all infractions, sentence is imposed immediately. For felonies and some misdemeanors, a future sentencing date is set.

In most cases, sentence is imposed by the trial judge. A few jurisdictions provide for a jury sentence recommendation, and even fewer actually permit the jury to impose sentence. Juries always plays a role in deciding whether death should be imposed. In some states, a jury recommendation is required before death can be imposed. In all jurisdictions, due process and jury trial right empower juries to find the facts, called an aggravating factor, that are required in capital cases.

The legislature determines how a crime should be punished. Legislatures normally set ranges within which judges may punish violators. In recent years there has been a substantial movement to limit the discretion of judges. This has been done in the fed- eral system and many states.

The right of the legislative branch in this area is curbed by the Eighth Amend- ment, which prohibits “cruel and unusual punishment.” The protection of the Eighth Amendment has been extended to state proceedings through the Fourteenth Amend- ment. However, legislatures enjoy wide discretion in deciding how to punish criminals.

Sentencing Procedure The Presentence Investigation/No Right to Counsel After a defendant is determined guilty, a sentencing date is set. For most felonies and misdemeanors the date will be set far enough in the future to permit the probation of- ficer to complete a presentence investigation.

The investigation typically begins with an interview of the defendant. Information concerning the defendant’s drug habits, criminal history, family, employment history, education, medical and psychological problems, and personal finances is obtained. The defendant is also permitted to give his or her version of the facts surrounding the of- fense. There appears to be no right to counsel during this interview,1 although most courts and probation officers permit attorneys to attend. The Seventh Circuit Court of Appeals held that the Sixth Amendment right to counsel does not apply at presentence interviews by probation officers. The court reasoned that because probation officers are neutral judicial employees, and not law enforcement officers, interviews conducted by them are not critical stages of an adversarial proceeding.2 The Seventh Circuit, like other courts that have considered the issue, thus determined that the presentence interview is a neutral, nonadversarial meeting between the probation officer and the defendant. This is so even though the defendant may be in custody and admissions could lead to greater punishment.

Three facts support the conclusion that there is no right to counsel during a pre- sentence investigation interview. First, the objective of the interview is to gather infor- mation to assist the sentencing court, not to establish that the defendant committed a crime. Second (and related to the first), a probation officer is not, strictly speaking, a law enforcement officer. Third, the questions asked at the interview are routine, and defense counsel can properly advise the client of his or her rights before the interview occurs.

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Per Curiam

In 1993, a Georgia jury convicted Sears of armed robbery and kidnaping with bodily injury (which also resulted in death), a capital crime under state law. During the penalty phase of Sears’ capital trial, his counsel presented evidence describing his

childhood as stable, loving, and essentially without incident. Seven witnesses offered testimony along the following lines: Sears came from a middle-class background; his actions shocked and dismayed his relatives; and a death sentence, the jury was told, would devastate the family. Counsel’s mitigation

SEARS V. UPTON 561 U.S. ___ (2010)

In addition to conducting an interview of the defendant, the probation officer will obtain copies of vital documents, such as the defendant’s “rap sheet” and relevant medical records. The probation officer will attempt to verify the information provided by the defendant through these documents and other investigatory processes.

When the probation officer has completed the investigation, a presentence report is prepared. This report reflects the information discovered during the investigation and is used by the court in determining what sentence should be imposed. Often, the prosecutor and law enforcement officers involved in prosecuting the defendant, family members of the defendant, and the victim of the crime are permitted to make state- ments that are incorporated into the report.

There is no constitutional right to the preparation of a presentence report; how- ever, most jurisdictions have followed the lead of the federal government, which re- quires a presentence report unless the record contains information sufficient to enable the meaningful exercise of sentencing discretion.3

In the federal system, the defendant is entitled to review the presentence report prior to sentencing. This is true in most states as well, but the right is not absolute. For example, the recommendation of the probation officer may be kept confidential.4

At the sentencing hearing, the defendant may disprove factual statements con- tained in the report. To this end witnesses may be called and exhibits introduced.

The Sentencing Hearing The next stage in the process is the sentencing hearing. Sentencing hearings are adver- sarial. Witnesses may be called, other evidence introduced, and arguments made. In most instances the hearing is before a judge, not a jury, and accordingly the rules of evidence are relaxed. When the hearing is before a jury, such as in capital cases, the rules of evidence are fully effective. This is a critical stage under the Sixth Amendment, and therefore there is a right to counsel. As is true for defendants at earlier stages of the pro- cess, convictees are entitled to more than a warm body; they are entitled to effective as- sistance of counsel. To prove ineffective assistance of counsel, it must be shown that the attorney’s representation fell below an objective standard of reasonableness and that the defendant was actually prejudiced. The following case, which involves the sentencing of a man for a brutal rape and murder, is an example of ineffective counsel at sentencing.

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theory, it seems, was calculated to portray the ad- verse impact of Sears’ execution on his family and loved ones. But the strategy backfired. The prosecu- tor ultimately used the evidence of Sears’ purport- edly stable and advantaged upbringing against him during the State’s closing argument. With Sears, the prosecutor told the jury, “[w]e don’t have a de- prived child from an inner city; a person who[m] so- ciety has turned its back on at an early age. But, yet, we have a person, privileged in every way, who has rejected every opportunity that was afforded him.”

The mitigation evidence that emerged during the state postconviction evidentiary hearing, how- ever, demonstrates that Sears was far from “privi- leged in every way.” Sears’ home life, while filled with material comfort, was anything but tranquil: His parents had a physically abusive relationship, and divorced when Sears was young, he suffered sexual abuse at the hands of an adolescent male cousin, his mother’s “favorite word for referring to her sons was ‘little mother fuckers,’ and his father was “verbally abusive,” and disciplined Sears with age-inappropriate military-style drills. Sears strug- gled in school, demonstrating substantial behav- ior problems from a very young age. For example, Sears repeated the second grade, and was referred to a local health center for evaluation at age nine. By the time Sears reached high school, he was “de- scribed as severely learning disabled and as se- verely behaviorally handicapped.”

Environmental factors aside, and more signifi- cantly, evidence produced during the state post- conviction relief process also revealed that Sears suffered “significant frontal lobe abnormalities.” Two different psychological experts testified that Sears had substantial deficits in mental cognition and reasoning—i.e., “problems with planning, se- quencing and impulse control,”—as a result of sev- eral serious head injuries he suffered as a child, as well as drug and alcohol abuse. Regardless of the

cause of his brain damage, his scores on at least two standardized assessment tests placed him at or below the first percentile in several categories of cognitive function, “making him among the most impaired individuals in the population in terms of ability to suppress competing impulses and con- form behavior only to relevant stimuli.” The assess- ment also revealed that Sears’ “ability to organize his choices, assign them relative weight and select among them in a deliberate way is grossly im- paired.” From an etiological standpoint, one expert explained that Sears’ “history is replete with mul- tiple head trauma, substance abuse and traumatic experiences of the type expected” to lead to these significant impairments.

Whatever concern the dissent has about some of the sources relied upon by Sears’ experts— informal personal accounts,—it does not undermine the well-credentialed expert’s assessment, based on between 12 and 16 hours of interviews, testing, and observations, that Sears suffers from substan- tial cognitive impairment. Sears performed dis- mally on several of the forensic tests administered to him to assess his frontal lobe functioning. On the Stroop Word Interference Test, which measures response inhibition, 99.6% of those individuals in his cohort (which accounts for age, education, and background) performed better than he did. On the Trail-Making B test, which also measures frontal lobe functioning, Sears performed at the first (and lowest) percentile. Based on these results, the ex- pert’s first-hand observations, and an extensive re- view of Sears’ personal history, the expert’s opinion was unequivocal: There is “clear and compelling evidence” that Sears has “pronounced frontal lobe pathology.”

Further, the fact that Sears’ brother is a con- victed drug dealer and user, and introduced Sears to a life of crime, actually would have been consis- tent with a mitigation theory portraying Sears as an

SEARS V. UPTON (c o nt i nu e d)

(continued)

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individual with diminished judgment and reason- ing skills, who may have desired to follow in the footsteps of an older brother who had shut him out of his life. And the fact that some of such evidence may have been “hearsay” does not necessarily un- dermine its value—or its admissibility—for penalty phase purposes.

Finally, the fact that along with this new mitiga- tion evidence there was also some adverse evidence is unsurprising, given that counsel’s initial mitigation investigation was constitutionally inadequate. Com- petent counsel should have been able to turn some of the adverse evidence into a positive—perhaps in sup- port of a cognitive deficiency mitigation theory. In par- ticular, evidence of Sears’ grandiose self-conception and evidence of his magical thinking, were features, in another well-credentialed expert’s view, of a “profound personality disorder.” This evidence might not have made Sears any more likable to the jury, but it might well have helped the jury understand Sears, and his horrendous acts—especially in light of his purportedly stable upbringing.

Because they failed to conduct an adequate mitigation investigation, none of this evidence was

known to Sears’ trial counsel. It emerged only dur- ing state postconviction relief.

Unsurprisingly, the state postconviction trial court concluded that Sears had demonstrated his counsel’s penalty phase investigation was constitu- tionally deficient. . . .

What is surprising, however, is the court’s analysis regarding whether counsel’s facially inade- quate mitigation investigation prejudiced Sears. . . .

A proper analysis of prejudice under Strickland would have taken into account the newly uncovered evidence of Sears’ “significant” mental and psy- chological impairments, along with the mitigation evidence introduced during Sears’ penalty phase trial, to assess whether there is a reasonable prob- ability that Sears would have received a different sentence after a constitutionally sufficient mitiga- tion investigation.

[Accordingly the Court remanded the case for a full analysis of whether the ineffective assistance of counsel at sentencing actually prejudiced the out- come of the sentence. Be aware that Justices Scalia and Thomas issued a sharply worded dissent in this case.]

SEARS V. UPTON (c o nt i nu e d)

In most instances, sentencing facts are established by preponderance of the evi- dence and are found by the sentencing judge. In rare instances, however, clear and convincing evidence or proof beyond a reasonable doubt is required. Death cases are an example. This issue has also arisen in the context of sentence enhancements. For ex- ample, due process requires that any fact that increases the penalty for a crime beyond the prescribed statutory maximum, other than the fact of a prior conviction, must be submitted to a jury and proved beyond a reasonable doubt. So, a sentencing scheme that increases the punishment for racially motivated second-degree murder beyond the limits set by the second-degree murder statute is invalid unless the racial motive is proved to the jury beyond a reasonable doubt.5

One issue that has received considerable attention, and contradictory treatment, from the Supreme Court in recent years is the use of victim impact statements at sentencing. A victim impact statement is an oral or written statement to the sentenc- ing judge explaining how the crime has affected the victim and, possibly, the victim’s family. In 1987 the Supreme Court handed down Booth v. Maryland, 482 U.S. 496

victim impact statement

■ At the time of

sentencing, a statement

made to the court

concerning the effect the

crime has had on the victim

or on the victim’s family.

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(1987), wherein it invalidated a state statute requiring sentencing judges to consider victim impact statements in capital cases. The Court determined that the use of victim impact statements could prejudice the proceeding by injecting irrelevant, but inflam- matory, evidence into the sentencing determination.

Only four years later, though, the Supreme Court overruled Booth in Payne v. Tennessee. Thus, victim impact evidence may be admitted, even if it is not related to the facts surrounding the crime. The decision concerning admissibility must be made on a case-by-case basis, and it is a violation of due process to admit evidence that is so prejudicial that the sentencing becomes fundamentally unfair.

On the other side of the coin, defendants are generally allowed to present nearly any evidence at sentencing. This right is constitutionally mandated in capital cases; the Supreme Court has said that a state cannot preclude a defendant from proffering evidence in support of a sentence less than death.6

In this case we reconsider our holdings in Booth v. Maryland . . . that the Eighth Amendment bars the admission of victim impact statement evidence during the penalty phase of a capital trial.

The petitioner, Pervis Tyrone Payne, was con- victed by a jury on two counts of first-degree mur- der and one count of assault with intent to commit murder in the first degree. He was sentenced to death for each of the murders, and to 30 years in prison for assault.

The victims of Payne’s offenses were 28-year- old Charisse Christopher, her 2-year-old daughter Lacie, and her 3-year-old son Nicholas. The three lived together . . . across the hall from Payne’s girlfriend, Bobbie Thomas. On Saturday, June 27, 1987, Payne vis- ited Thomas’s apartment several times in expectation of her return from her mother’s house in Arkansas, but found no one at home. One visit, he left his over- night bag, containing clothes and other items for his weekend stay, in the hallway outside Thomas’s apart- ment. With the bag were three cans of malt liquor.

Payne passed the morning and early afternoon injecting cocaine and drinking beer. Later, he drove

around the town with a friend in the friend’s car, each of them taking turns reading a pornographic magazine. Sometime around 3 p.m., Payne returned to the apartment complex, entered the Christophers’ apartment, and began making sexual advances to- ward Charisse. Charisse resisted and Payne became violent. A neighbor who resided in the apartment directly beneath the Christophers heard Charisse screaming, “‘Get out, get out,’ as if she were tell- ing the children to leave.” The noise briefly subsided and then began “horribly loud.” The neighbor called the police after she heard a “bloodcurdling scream” from the Christopher apartment. . . .

When the first police officer arrived at the scene, he immediately encountered Payne, who was leav- ing the apartment building, so covered with blood that he appeared to be “sweating blood.” The officer confronted Payne, who responded, “I’m the com- plainant.” . . . When the officer asked, “What is go- ing on up there?” Payne struck the officer with the overnight bag, dropped his tennis shoes, and fled.

Inside the apartment, the police encountered a horrifying scene. Blood covered the walls and floor

PAYNE V. TENNESSEE 501 U.S. 808 (1991)

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throughout the unit. Charisse and her children were lying on the floor in the kitchen. Nicholas, despite several wounds inflicted by a butcher knife that completely penetrated through his body from front to back, was still breathing. Miraculously, he sur- vived. . . . Charisse and Lacie were dead.

Charisse’s body was found on the kitchen floor on her back, her legs fully extended. . . . None of the 84 wounds inflicted by Payne were individually fa- tal; rather, the cause of death was most likely bleed- ing from all of the wounds. She had suffered stab wounds to the chest, abdomen, back, and head. The murder weapon, a butcher knife, was found at her feet. Payne’s baseball cap was snapped on her arm near her elbow. Three cans of malt liquor bearing Payne’s fingerprints were found near her body, and a fourth empty was on a landing outside the apart- ment door.

Payne was apprehended later that day. . . . [T]he jury returned guilty verdicts against Payne

on all counts. During the sentencing phase of the trial, Payne

presented the testimony of four witnesses, his mother and father, Bobbie Thomas, and Dr. John T. Huston, a clinical psychologist specializing in crimi- nal court evaluation work. Bobbie Thomas testified that she met Payne at church, during a time when she was being abused by her husband. She stated that Payne was a very caring person, and that he devoted much time and attention to her three chil- dren, who were being affected by her marital diffi- culties. She said that the children had come to love him very much and would miss him, and that he “behaved just like a father that loved his kids.” She asserted that he did not drink, nor did he use drugs, and that it was generally inconsistent with Payne’s character to have committed these crimes. . . .

The State presented the testimony of Charisse’s mother, Mary Zvolanek. When asked how Nicholas

had been affected by the murder of his mother and sister, she responded:

He cries for his mom. He doesn’t seem to understand

why she doesn’t come home. And he cries for his

sister Lacie. He comes to me many times during the

week and asks me, Grandma, do you miss Lacie. And

I tell him yes. He says, I’m worried about my Lacie.

In arguing for the death penalty during closing argument, the prosecutor commented on the con- tinuing effects of Nicholas’s experience, stating:

But we do know that Nicholas was alive. And Nich-

olas was in the same room. Nicholas was still con-

scious. His eyes were open. He responded to the

paramedics. He was able to follow their directions.

He was able to hold his intestines in as he was carried

to the ambulance. So he knew what happened to his

mother and baby sister. . . .

Somewhere down the road Nicholas is going to

grow up, hopefully. He’s going to want to know what

happened. And he is going to know what happened

to his baby sister and mother. He is going to want to

know what type of justice was done. He is going to

want to know what happened. With your verdict, you

will provide the answer. . . .

In the rebuttal to Payne’s closing argument, the prosecutor stated:

You saw the videotape this morning. You saw what

Nicholas Christopher will carry in his mind forever.

When you talk about cruel, when you talk about atro-

cious, and when you talk about heinous, that picture

will always come into your mind, probably through-

out the rest of your lives.

■ ■ ■

No one will ever know about Lacie Jo because she

never had a chance to grow up. Her life was taken

from her at the age of two years old. . . . His mother

PAYNE V. TENNESSEE (c o nt i nu e d)

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will never kiss [Nicholas] good night or pat him as he

goes off to bed, or hold him and sing him a lullaby.

[Petitioner’s attorney] wants you to think about a

good reputation, people who love the defendant and

things about him. He doesn’t want you to think about

the people who loved Charisse Christopher, her

mother, and daddy who loved her. The people who

loved little Lacie Jo, the grandparents who are still

here. The brother who mourns for her every single

day and wants to know where his best little playmate

is. He doesn’t have anybody to watch cartoons with

him, a little one. These are the things that go into why

it is especially cruel, heinous, and atrocious, the bur-

den that child will carry forever.

The jury sentenced Payne to death on each of the murder counts. The Supreme Court of Tennes- see affirmed the conviction and sentence. . . .

We granted certiorari . . . to reconsider our holdings in Booth . . . that the Eighth Amendment prohibits a capital sentencing jury from considering “victim impact” evidence relating to the personal characteristics of the victim and the emotional im- pact of the crimes on the victim’s family. . . .

Under our constitutional system, the primary responsibility for defining crimes against state law, fixing punishments for the commission of these crimes, and establishing procedures for criminal tri- als rests with the States. The state laws respecting crimes, punishments, and criminal procedure are of course subject to the overriding provisions of the United States Constitution. . . .

Within the constitutional limitations defined in our cases, the States enjoy their traditional lati- tude to prescribe the method by which those who commit murder should be punished. . . . The states remain free, in capital cases, as well as others, to devise new procedures and new remedies to meet felt needs. Victim impact evidence is simply an- other form or method of informing the sentencing

authority about the specific harm caused by the crime in question, evidence of a general type long considered by sentencing authorities. [The] Booth Court was wrong in stating that this kind of evi- dence leads to the arbitrary imposition of the death penalty. In the majority of cases, and in this case, victim impact evidence serves entirely legitimate purposes. In the event that evidence is introduced that is so unduly prejudicial that it renders the trial fundamentally unfair, the Due Process Clause of the Fourteenth Amendment provides a mechanism for relief. . . . Courts have always taken into con- sideration the harm done by the defendant in im- posing sentence, and the evidence adduced in this case was illustrative of the harm caused by Payne’s double murder.

We are now of the view that a State may prop- erly conclude that for the jury to assess meaningfully the defendant’s moral culpability and blamewor- thiness, it should have before it at the sentencing phase evidence of the specific harm caused by the defendant. “[T]he State has a legitimate interest in counteracting the mitigating evidence which the defendant is entitled to put in, by reminding the sentencer that just as the murderer should be con- sidered an individual, so too the victim is an individ- ual whose death represents a unique loss to society and in particular to his family.” . . . By turning the victim into a “faceless stranger at the penalty phase of a criminal trial” . . . Booth deprives the State of the full moral force of its evidence and may prevent the jury from having before it all the information necessary to determine the proper punishment for a first-degree murder.

The present case is an example of the poten- tial for such unfairness. The capital sentencing jury heard testimony from Payne’s girlfriend that they met at church, that he was affectionate, caring, kind to her children. . . . Payne’s parents testified that he

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was a good son, and a clinical psychologist testi- fied that Payne was an extremely polite prisoner and suffered from a low IQ. None of this testimony was related to the circumstances of Payne’s bru- tal crimes. . . . The Supreme Court of Tennessee in this case obviously felt the unfairness of the rule pronounced in Booth when it said “[i]t is an af- front to the civilized members of the human race to say that at sentencing in a capital case, a parade

of witnesses may praise the background, character and good deeds of the defendant (as was done in this case), without limitation as to relevancy, but nothing may be said that bears upon the character of, or the harm imposed, upon the victims.” . . .

We thus hold that if the State chooses to per- mit the admission of victim impact evidence and prosecutorial argument on that subject, the Eighth Amendment erects no per se bar.

Punishing Acquitted Crimes Historically, judges have held considerable discretion in sentencing. The rules of evi- dence are relaxed, and judges may hear evidence that is otherwise inadmissible. Victim impact evidence, family history, medical history, mental health history, employment history, and criminal history are examples of the type of evidence that is considered at sentencing.

Additionally, the nature of the crime committed and the particular manner in which it was committed are considered. In some cases, evidence concerning the nature and manner of the offense may include evidence of other crimes that were commit- ted in conjunction with the offense under sentence. An interesting question concerns whether a defendant may have a sentence increased for acquitted crimes. This issue was before the Supreme Court in United States v. Watts (1997).7 Police discovered both cocaine and guns in a search of Watts’s property, and he was subsequently charged and tried for possession of cocaine and possession of a gun in relation to a drug offense. The jury convicted him of the former charge and acquitted him of the latter charge. At sentencing, however, the trial judge found that Watts did use the gun in relation to a drug offense and, accordingly, increased his sentence for the cocaine possession conviction.

On appeal, the Supreme Court affirmed the sentence enhancement. The Court stressed that judges have historically had significant discretion in sentencing and that the enhancement was not punishment for an acquitted offense, but instead was an enhanced punishment for the manner in which the defendant committed the crime of conviction. Also important are the differing standards of proof between conviction and sentencing. Conviction requires a finding beyond a reasonable doubt, while sen- tencing requires proof by preponderance of the evidence. The high standard of proof for conviction, according to the Court, means that an acquittal cannot be interpreted as a finding of fact. An acquittal means that the government has not proved its case, not that the defendant did not commit the act in question. However, for reasons to be discussed, the status of Watts is unknown.

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Proving Facts for Sentencing In a practice similar to that of using acquitted crimes to enhance a sentence, judges have historically used facts not presented to the trial jury to increase sentences. If there is a plea of guilty, the judge must find that the essential elements of the crime were committed. This usually involves a recitation of the facts by the defendant. If there has been a trial, the judge is armed with the findings of the jury; or in the case of a bench trial, of the trial judge. Once the facts have been established at trial, whether by confes- sion or a finding of fact, additional evidence must be received at sentencing. However, that evidence is limited to the facts that are relevant to the sentencing decision. For over 150 years, trial judges routinely found facts, often by a preponderance of the evidence, at sentencing hearings. Judges have always been restricted by jury decisions. That is, they cannot refind facts that have been decided by trial juries. For example, if a jury finds a defendant guilty of possession of a specific amount of cocaine, a sentenc- ing judge is prohibited from increasing the sentence because the judge finds that the defendant possessed a greater amount of cocaine.

However, judges would commonly find other facts that affected the final sentence— for example, whether a defendant possessed a weapon while engaged in a drug deal in a case where the defendant was charged only with dealing drugs, not possession of the weapon. Often these facts were proved by the preponderance standard.

In recent years, however, a new body of law has developed around the Sixth Amendment’s jury trial right. In short, these cases require that all findings that are used to support the sentence must be heard by a jury and found to be true beyond a reasonable doubt.8 In Blakely, the defendant had been charged with first-degree kidnapping. He and the state reached a plea agreement that reduced the charges to second-degree kidnapping involving domestic violence and the use of a firearm. Pursuant to the plea agreement, the state recommended a sentence of between 49 and 53 months. The judge, however, found that the crime involved deliberate cru- elty and enhanced the sentence to 90 months. After the defendant objected, the judge conducted a three-day fact hearing on the deliberate cruelty question. The judge again sentenced the defendant to 90 months, having found deliberate cruelty following the hearing.

The Supreme Court reversed, finding that it was not possible for the judge to jus- tify the enhanced sentence solely because of the facts admitted in the guilty plea. While the defendant admitted to kidnapping and the use of a gun, he did not provide evi- dence that he acted with deliberate cruelty. Accordingly, the judge had to find facts the trial jury was not charged with determining. This effort is proved by the judge’s need to conduct a three-day sentencing hearing. Because the Sixth Amendment guarantees individuals the right to have all facts essential to sentencing heard by a jury, using the reasonable doubt standard, the trial judge erred. Whether the judge had charged the trial jury to make the deliberate cruelty finding or had empaneled a jury at sentenc- ing to make the finding, the sentence would not have violated the Sixth Amendment. Similarly, in the 2007 Cunningham case, the Court invalidated a California law that created an upper range of 12 years in prison for the crimes covered by the jury’s verdict but allowed the judge to sentence the offender to an additional four years for facts the

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judge could find, by preponderance of the evidence, at a sentencing hearing. Later, in the discussion of the federal sentencing guidelines, you may read an excerpt of the Supreme Court’s decision United States v. Booker wherein the right to have facts decided by a jury under the Sixth Amendment was used to invalidate the mandatory nature of the federal sentencing guidelines. The relationship between Booker and Watts is not clear. Watts may be overruled altogether. At the least, Booker demands that the conduct for which the defendant was acquitted be found by a jury before a judge may rely upon them at sentencing.

In capital cases the Supreme Court has specifically held that the aggravating cir- cumstances that must be found to impose death have to be found by a jury and beyond a reasonable doubt.9 Judges may still be empowered to decide whether to impose death or another punishment, but death is only an option to the judge if the jury finds an aggravating factor. Some states have delegated only the aggravating factor decision to juries, as required, and others have handed the jury both the aggravating factor and the sentencing decision.

Forms of Punishment The legislature determines what type of sentence may be imposed; judges impose sentences.

Capital Punishment Clearly the most controversial punishment is the death penalty. In early American history, capital punishment was commonly used. During the nineteenth century, use of the death penalty greatly declined. Today, more than half the states provide for the death penalty, and its use has regained popular support. Although the number of in- mates actually executed every year is small, the number is increasing.

The contention that the death penalty is inherently cruel and unusual and there- fore violative of the Eighth Amendment has been rejected. However, the Court has struggled, as have state courts and legislatures, with establishing standards for its use.

In Furman v. Georgia, 408 U.S. 238 (1972), the Court held that the death penalty cannot be imposed under a sentencing procedure that creates a substantial risk of being implemented in an arbitrary manner. It found that Georgia’s law permitted arbitrary decisions and so declared it void. Furman required that the sentencer’s discretion be limited by objective standards to eliminate unfairness—specifically, to eliminate racial and other bias from death sentence decisions.

States responded to Furman in various ways. Some chose to eliminate discretion entirely by mandating capital punishment for certain crimes. The Supreme Court in- validated mandatory capital punishment laws in Locket v. Ohio, 438 U.S. 586 (1978). In Locket the Court held that individualized sentencing was constitutionally required. The Court stated that any law prohibiting a sentencer from considering “as a mitigat- ing factor, any aspect of a defendant’s character or record and any circumstances of the offense that the defendant proffers as a basis for a sentence less than death” creates an unconstitutional risk that the “death penalty will be imposed in spite of factors which may call for a less severe penalty.”10

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