Table of Contents
Basic.......................................................................................................................................3
Prosecutorial Discretion..........................................................................................................3
Limits on Prosecutorial Discretion......................................................................................................3
Statutory/Administrative Limits............................................................................................................................3
Ethical Limits..........................................................................................................................................................3
Constitutional Limits (Equal Protection Clause)....................................................................................................3
Formal Charging Mechanisms.................................................................................................4
Grand Jury..........................................................................................................................................4
Preliminary Hearing...........................................................................................................................4
Severance and Joinder.......................................................................................................................5
Conflicting Defense................................................................................................................................................5
Drafting Formal Charges.....................................................................................................................5
Bail.........................................................................................................................................6
Preventative Detention......................................................................................................................6
Pretrial Detention..................................................................................................................................................6
Detention of Material Witness..............................................................................................................................7
Sexual Predators....................................................................................................................................................7
Immigration...........................................................................................................................................................7
Enemy Combatants...............................................................................................................................................7
Discovery................................................................................................................................8
Statutory/Rule Discovery...................................................................................................................8
Constitutional Discovery....................................................................................................................9
Discovery for Guilty Pleas.................................................................................................................10
Duty to Preserve Evidence................................................................................................................10
Speedy Trial...........................................................................................................................10
Speedy Trial Rights...........................................................................................................................11
Remedies.........................................................................................................................................12
Speedy Trial and Sentencing Delay...................................................................................................12
Right to Counsel (6 Amendment).........................................................................................12
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Appointment of Counsel..................................................................................................................12
Standard for Effective Counsel..........................................................................................................13
Right to Self-Representation.............................................................................................................15
Plea Bargaining.....................................................................................................................15
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Constitutionality of Plea Bargain......................................................................................................15
Effective Assistance of Counsel.........................................................................................................16
General................................................................................................................................................................16
Guilty Pleas..........................................................................................................................................................17
Remedies for Breach of Plea Agreements.........................................................................................18
Trial.......................................................................................................................................19
General Jury Trial.............................................................................................................................19
Jury Selection...................................................................................................................................20
Pretrial Publicity/Trial Rights.................................................................................................21
Principles.........................................................................................................................................21
Dealing with Pretrial Publicity..........................................................................................................21
Trial Rights.......................................................................................................................................23
Right to Presence (Part of Right to Confrontation).............................................................................................23
Right to Confront Witness...................................................................................................................................24
Right from Self-Incrimination..............................................................................................................................24
Due Process and Improper Prosecutorial Comments.........................................................................................25
Right to Present Defense.....................................................................................................................................25
Role of Jury and Proof Beyond Reasonable Doubt..............................................................................................25
Sentencing............................................................................................................................25
Indeterminate..................................................................................................................................25
Determinate.....................................................................................................................................25
Mandatory Minimums........................................................................................................................................26
Federal Sentencing (18 U.S.C. §3553(a))...........................................................................................27
Eight Amendment “Cruel and Unusual Punishment”........................................................................27
Three Strikes Law and Proportionality................................................................................................................28
Per Se Eighth Amendment Violations.................................................................................................................28
Death Penalty...................................................................................................................................29
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Basic
Duncan v. Louisiana
6th Amendment right to jury trial is incorporated (5 Amendment right to grand jury for
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criminal cases is not incorporated)
Prosecutorial Discretion
Inmates of Attica v. Rockefeller
Courts cannot force prosecutors to prosecute (charging decisions are left to the
discretion of the executive branch)
Limits on Prosecutorial Discretion
Statutory/Administrative Limits
No double jeopardy for state and federal prosecution, unless barred by statute
Prosecutors may adopt guidelines, but internal guidelines do not create independent
rights for defendant
Ethical Limits
Model Code: Responsibility of prosecutor is to seek justice, not merely to convict
For charging: Standard 3-3.9 bars prosecutors from charging if has reasonable doubt
about guilt of accused
Constitutional Limits (Equal Protection Clause)
Selective Prosecution
Prosecutorial discretion is limited by unconstitutional motives to charge a defendant
based on race, religion, or other classification, in violation of the Fourteenth
Amendment’s Equal Protection Clause.
A defendant who is prosecuted in retaliation for the defendant’s exercise of a
constitutional can move to dismiss for vindictive prosecution.
Wayte: The burden of showing prosecutorial “bad faith” in charging is on the defendant
to show that the action (such as a passive enforcement system) had a discriminatory
effect and that it was motivated by a discriminatory purpose.
o Armstrong: To discriminatory effect with respect to race class, the defendant
must show that similarly situated individuals of a different race were not
prosecuted.
Vindictive Prosecution
A prosecutor’s decision to increase the number of severity of charges against a
defendant may be challenged as violating due process if it penalizes a defendant’s
exercise of constitutional or statutory rights (there is no presumption of vindictiveness
when a prosecutor threatens or increase charges if a defendant does not accept a plea
offer or when additional charges are added after a defendant’s request for a jury trial).
Ultimately, the defendant carries the burden of proving vindictive prosecution.
o Blackledge: Even if there is no evidence of bad faith from the prosecutor, if the
prosecutor’s action (e.g., the bringing of more serious charges against the
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defendant prior to the trial de novo in response to a defendant’s invocation of
the statutory right to appeal) causes the defendant to deter the exercise of rights
(Ie if you appeal we will increase charges) (e.g., right to appeal or collaterally
attack conviction), then the prosecutor acted impermissibly. Due process
requires that a defendant to be freed from apprehension in exercising their
rights.
Formal Charging Mechanisms
Both grand jury and preliminary hearings are designed to protect citizens from unjust
prosecutions.
Grand Jury
The right to a grand jury was incorporated into the Fifth Amendment, and it provides
that, except in military cases, “no person shall be held to answer for a capital, or
otherwise infamous crime, unless on a presentment or indictment of a grand jury.”
Grand jury indictments are the primary mechanism for bringing federal charges, and
“infamous crimes” are those that can result in imprisonment or hard labor. The right to
a grand jury only applies to federal prosecutions. In addition to screening cases, the
grand jury serves an investigatory function in that it has the power to subpoena
witnesses and documents.
A defendant can waive grand jury indictment and opt for formal charges by information
(Fed. R. Crim. P. 7(b)).
States can mandate that only admissible evidence may be presented to the grand jury to
establish grounds for an indictment. However, there is no constitutional bar to
presenting inadmissible evidence to the grand jury for the purpose of receiving an
indictment. Also, grand jurors are able to hear excludable evidence in proceedings.
Non-adversarial process – defendant is not present, no right to counsel
Preliminary Hearing
In federal court, preliminary hearings are governed by Fed. R. Crim. P. 5.1 and are only
used to hold a defendant until an indictment can be obtained.
Adversarial process where defendant has the right to be present and represented by
counsel. The prosecution bears the burden of presenting probable cause supporting the
charge.
In federal court, the rules of evidence do not apply to federal preliminary hearings (Fed.
R. Evid. 1101(d)(3)).
After the preliminary hearing, the court decides whether to bind the defendant over for
a trial (usually triggers a more intense effort at plea negotiations).
If a magistrate refuses to bind over a defendant for trial, prosecutors may present their
case to the grand jury or move to dismiss it and refile before a different judge.
Any errors at preliminary hearings are generally considered harmless once the
defendant is tried and convicted.
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Severance and Joinder
Fed. R. Crim. P. 8/14
o 8(a) permits the joinder of offenses that “are the same or similar character, or
based on the same act or transaction, or are connected with or constitute parts
of a common scheme or plan.”
o 8(b) permits two or more defendants to be charged together if they have
participated in the same act or transaction, or in the same series of acts or
transactions. The defendants may be charged in one or more counts together.
All defendants need not be charged in each account.
o 14 provides relief from prejudicial joinder: “If the joiner of offenses or
defendants in an indictment, or information, or a consolidation for trial, appears
to prejudice a defendant or the government, the court may order separate trials
of counts, sever the defendant’s trials, or provide any other relief that justice
requires.”
Two common grounds for severance of joined defendants is (1) conflicting
defenses, and (2) introduction of confessions that implicate codefendants
in a manner that violates the codefendant’s right of confrontation.
(Bruton) Generally, courts will not sever a case unless the conflict
between defendants is irreconcilable.
Conflicting Defense
Zafro: “Mutually antagonistic” (He did it, no he did it) defenses do not get automatic
severance; Rule 14 severance leaves the determination of risk of prejudice and any
remedy that may be necessary to the discretion of the courts;
Bruton: Confessing defendant’s statement may be admissible against the defendant who
confessed, but introducing the statement that implicates a codefendant violates the
Confrontation Clause. In such Bruton problem cases, the prosecution must redact the
statement so as to not implicate any codefendants or bring separate trials; Jury
instruction inadequate to safeguard rights
o Prosecutor’s Options for Bruton Cases: (1) Agree on separate trials for
defendants, (2) try defendants jointly but forgo use of the confession, (3) redact
confession to remove all references to existence of a non-confessing defendant
o Richardson: The Bruton exception is not extended to cases where a co-
defendant’s confession is not facially incriminating (i.e., a redacted confession
that did not refer to co-defendants). Inferential incrimination does not violate
the Confrontation Clause.
o Gray: Confessions that refer directly to the existence of nonconfessing defendant
(even if the State replaced the nonconfessing defendant’s name with a symbol or
“deleted” or a blank space set off by commas falls within Bruton’s protective rule.
Drafting Formal Charges
Fed. R. Crim. P. 7
o Nature and Content
“Plain, concise, and definite statement of essential facts”
Signed by attorney for govt.
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Provide official citation of statute
Extra details available in “bill of particulars”
o Facts to Include
Jurisdiction
Parties
Elements of Crime
Statute of Limitations
o Basics of Fed. R. Crim. P. 7
Indictment need only inform a defendant of the charge the defendant
must defend and provide sufficient detail that the defendant can raise a
double jeopardy objection to future prosecution for same offense
Bail
Eighth Amendment states that “[e]xcessive bail shall not be required.”
o Stack v. Boyle: Eighth amendment does not guarantee the right to bail in all
cases; only in cases where it is permitted, it cannot be excessive. Also, bail need
not be allowed in capital offense cases.
Bail Reform Act of 1984, 18 U.S.C. 3142 and 3144 control in the federal system.
Types of Bail:
o Own recognizance (OR) or personal recognizance (PR) release permits a
defendant to be released upon a mere promise to appear in court.
o Pretrial release subjects defendants to supervision or rehabilitation programs
prior to trial.
o A financial bond requires a defendant to post money with the court. A secured
bond is usually secured by a deed to property, and an unsecured bond is based
on a cash deposit and a promise to pay the remainder if the defendant fails to
appear.
Nebia hearing is a special hearing to determine whether proceeds being posted as bond
are from an illegal source (which is not permitted).
Court can impose conditions for posting bond (including drug testing, travel restrictions,
surrender of passport, counseling, lack of contact with witnesses and victims, home
confinement, etc.).
Forfeiture of bail is governed by Fed. R. Crim. P. 46(f).
Preventative Detention
Pretrial Detention
Factors to consider fairness of holding defendant in custody: (1) flight risk, (2) danger to
the community.
Salerno: Pretrial detention is regulatory in nature, and does not constitute punishment
before trial in violation of the Due Process Clause.
o Cleared the way for courts to consider both a defendant’s flight risk and future
danger to the community in deciding bail.
o Factors for determining to grant bail and amount:
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Seriousness of the offense
Punishment defendant faces
Prior criminal record
Ties to the community
Character
Financial status
Other information
Detention of Material Witness
18 USC §3144: persons designated as “material witnesses” may be detained pretrial. A
material witness is an individual who has information regarding a criminal proceeding
whose appearance “may become impracticable to secure ... by subpoena.”
o Individuals need not be accused of crime
o Balance usually favors government
o Awadallah
Section 3144 permits the detention of material witnesses for proceedings
before a grand jury; the statute states “criminal proceeding” as its scope,
and grand jury proceedings are within that scope
Sexual Predators
Kansas v. Hendricks (balance safety vs. due process)
o Laws that prescribe the preventative detention of defendants who have
completed sentences for sexual offenses are constitutional if the laws do not
create criminal proceedings and the involuntary confinement is not punitive
Immigration
Illegal immigrants in the U.S. may be detained by the government even if they have not
been convicted or charged with a crime
o Zadvydas v. Davis
Civil confinement may be justified by the government’s regulatory needs,
but indefinite detention without court review would violate due process;
therefore, if an alien is not removed within 90-day period of statute, alien
may bring a habeas corpus action to determine if continued detention is
reasonable
Enemy Combatants
Complaint
FRCP 8
Discovery
Statutory/Rule Discovery
Generally two-way streets: rules require prosecutors and defense attorneys to disclose
to each other certain types of evidence that they plan to use in respective case-in-chiefs
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Federal Rules for Discovery
o FRCP 16(a): requires that prosecution disclose to defense all statements of
defendant, the defendant’s prior criminal record, documents and physical objects
the prosecutor will seek to introduce during trial, experts’ reports, and bases of
experts’ opinions
o Rule 26.2 (Jencks Act): requires that prosecutor disclose witness’s pretrial
statements after witness testifies on direct examination, so statements are
available for impeachment
Also requires defense to provide copy of witness’s pretrial statements
after defense witness testify on direct examination
o Rule 16(b): if defense requests discovery from prosecution, defense has a
reciprocal duty to provide documents and tangible objects it intends to introduce
in case-in-chief as well as access to experts’ reports and bases for testimony
o Notice Requirement
Rule 12.1: requires defense, upon government’s request, to provide
written notice of an intention to offer an alibi defense; once defense
provides such notice, prosecution has duty to provide defense
information regarding rebuttal witnesses it will use to establish
defendant’s presence at scene of crime or to rebut testimony of
defendant’s alibi witnesses
Rule 12.2: requires that defendant give notice of an intention to rely on
mental defense at trial; once defense provide notice, government has
opportunity to have its expert examine defendant to prepare for case
o REMEDIES: Broad discretion (exclusions, grant appropriate continuance, sanction
counsel)
Taylor (holding that defendant’s Sixth Amendment right to compel
witnesses is not violated if a court bars a defense witness from testifying
because the defense has not complied with a valid court discovery order).
Courts determine whether to impose sanctions for discovery violations
based on whether violating party acted in bad faith and the opposing
party suffered any prejudice due to the violation
Constitutionality of Reciprocal Rules
o Williams v. Florida
Alibi notice rule does not violate 5 or 14 amendments (D claimed that
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notice-of-alibi rule required him to give State name and address of alibi
witness in advance of trial and thus to furnish State with information
useful in convicting him)
Alibi notice rule only accelerates timing of disclosure; alibi notice rule
only forces D to divulge at earlier date information that he from the
beginning planned to divulge at trial
Constitutional Discovery
General:
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o Brady: Suppression by prosecution of evidence favorable to accused upon
request violates due process where evidence is material either to guilt or
punishment, irrespective of good faith or bad faith of prosecution
Prosecutor has responsibility of anticipating what defenses might be
presented in a case, to provide all relevant discovery
Regardless of whether defense requests discovery, prosecutor has
constitutional duty to provide exculpatory evidence
Exculpatory evidence must be provided in sufficient time for defense to
use at trial
ABA Model Rule 3.8(d) fills gap of problem of withholding exculpatory
evidence and later arguing that withheld evidence would not have
affected verdict
Ethics rule: prosecutor has ethical duty to “make timely disclosure
to defense all evidence or information known to prosecutor that
tends to negate the guilt of the accused or mitigates offense [or
impact sentencing]”
Impeachment:
o Giglio: Extends Brady to also cover evidence that undermines prosecution’s case
by impeaching witness
Government did not disclose alleged promise of leniency made to a key
witness
Given that prosecution’s entire case depended on key witness, the key
witness’s credibility was “material,” and, therefore, impeachment
evidence should have been disclosed (failure to disclose violated due
process)
Materiality:
o Bagley: Standard of materiality to be applied in determining whether a conviction
should be reversed because the prosecutor failed to disclose requested evidence
that could have been used to impeach government witness
o “ Suppressed evidence is material only if there is a reasonable probability that,
had the evidence reasonable probability that, had the evidence been disclosed to
the defense, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.”
o Brady/Bagley standard requires judges to evaluate on a case-by-case basis
whether withheld information would have had a reasonable probability of
affecting D’s case
o Kyles v. Whitley (Aggregate Approach)
Materiality in terms of suppressed evidence is considered collectively, not
item by item
In assessing whether there has been a Brady violation, focus should be on
collective impact of withheld evidence and whether it undermines
confidence in the verdict
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Prosecutor also has duty to learn of and disclose any favorable evidence
possessed by government agents or police working on case
o Banks v. Dretke (Closer Scrutiny with Capital Case)
Non-disclosure of paid informant witness was “material” because
informant was key witness at both and punishment phases of trial and
informant’s testimony had a prominent role in establishing key facts in
prosecution’s case
What Qualifies as Brady Material?
o Evidence suggesting that someone other than the accused committed the crime
o Prior inconsistent statements by witnesses
o Evidence of motivation for witness to lie
o Information undermining police and lab witnesses
o Evidence supporting defense theory
Remedy: Grant of new trial
Discovery for Guilty Pleas
Ruiz:
o Due process does not require that government disclose impeachment evidence
before a defendant’s guilty plea; disclosure of impeachment evidence is required
to ensure a fair trial, but a guilty plea may be voluntary without it
o Potential interference with plea bargaining process: “A constitutional obligation
to provide impeachment information during plea bargaining, prior to entry of a
guilty plea, could seriously interfere with the Government’s interest in securing
those guilty pleas that are factually justified, desired by defendants, and help to
secure the efficient administration of justice....These considerations, taken
together, lead us to conclude that the Constitution does not require the
Government to disclose material impeachment evidence prior to entering a plea
agreement with a criminal defendant.”
Duty to Preserve Evidence
Arizona v. Youngblood
o Unless a criminal defendant can show bad faith on the part of the police, failure
to preserve potentially useful evidence does not constitute a denial of due
process. Here it was rape kit which was not preserved 20 years later
Speedy Trial
Sixth Amendment: “In all criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial.”
Generally, two issues: (1) rules governing delay during the period from the commitment
of the crime until arrest or formal charging, (2) rules governing delays during the period
from charging until trial
(1) (pre-charging delay) does not trigger speedy trial rights; speedy trial rights are only
triggered after a defendant has been formally charged, or (2).
o Pre-Arrest/Charges
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6th Amendment does not apply
Statute of limitations the main protection
Constitutional right: Due process
Speedy Trial Rights
Barker v. Wingo (After you are charged)
o Balancing test in which the conduct of both prosecution and defendant are
weighed (none of the factors are necessary or sufficient to finding deprivation of
right of speedy trial; they are related factors that must be considered together
with other relevant circumstances)
Factors:
Length of delay (Triggering Mechanism; must be present to kick
off analysis)
o Dependent upon circumstances; delay that can be
tolerated for ordinary street crime is considerably less than
for a serious, complex conspiracy charge. (5 years in this
case, but didn’t harm the defendant, memory lapses were
minor)
Reason for delay
o Deliberate attempt to delay in order to hamper defense
should be weighted heavily against government
o More neutral reason (e.g., negligence or overcrowded
courts) should be less heavily but still considered the
ultimate responsibility of such circumstances must rest
with government rather than defendant
o Missing witness is a valid reason that should serve to
justify appropriate delay
Defendant’s assertion of right
o Failure of defendant to assert right will make it difficult for
defendant to prove denial of right to speedy trial
Prejudice to the defendant
o If delay causes death or disappearance of witness, then
prejudice
o Delay causes major lapses of memory
Factors Applied
Length of delay over five years; only seven months of period are
excusable (illness of ex-sheriff who was in charge of investigation)
However:
o Prejudice was minimal (no witnesses died or became
unavailable because of the delay; only two minor lapses in
memory which were not significant to outcome
o D did not want a speedy trial (D was gambling on acquittal
of accomplice such that he would not be tried if
accomplice were acquitted)
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Doggett v. United States (Length, Official Negligence, Presumption of Prejudice)
o Delay of 8 ½ years between indictment and arrest due to official negligence
(failure of diligence to pursue) violated defendant’s right to fair trial (D was not
aware of indictment)
o Excessive delay presumptively compromises the reliability of a trial in ways that
neither party can prove or identify; therefore, affirmative proof of particularized
prejudice is not essential to every speedy trial claim
o Kid was 20, got indictment, he left the country after the indictment, they never
served him. Came back to the US, they saw the indictment and try to arrest him.
Court said you can’t do that. They should’ve confiscated his passport
Vermont v. Brillon (Delay Caused by Defense Counsel)
o Delay caused by D’s counsel is also charged against the D, regardless of if counsel
is privately retained or publicly assigned
o Assigned counsel’s failure “to move the case forward” does not warrant
attribution of delay to the State because assigned counsels are generally not
state actors for purposes of speedy-trial claim
o Facts:
D went through 6 lawyers, which caused 3 years of delay
Remedies
Strunk v. U.S.
o The only remedy that makes sense for violation of the Sixth Amendment right to
speedy trial is dismissal with prejudice
Speedy Trial and Sentencing Delay
Betterman v. Montana
o Sixth Amendment right to speedy trial does not apply to sentencing proceedings;
but defendants can raise due process challenges if there are undue delays in
sentencing (Fifth and Fourteenth Amendments)
Right to Counsel (6 Amendment)
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Appointment of Counsel
Gideon v. Wainwright
o The assistance of counsel is “one of the safeguards of the Sixth Amendment
deemed necessary to insure fundamental human rights of life and liberty”
o In our adversary system of criminal justice, “any person haled to court, who is too
poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for
him”
o Applicable to states
o Right to appointed counsel
Right to counsel is absolute and applies to all “critical stages” of a criminal prosecution
after the filing of formal charges (Kirby)
o Right to counsel attaches at all post-indictment pretrial lineups (Wade)
o Preliminary hearings (Coleman)
o Post-indictment interrogations (Massiah)
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o Arraignments (Hamilton)
o Applies at D’s first appearance before a judicial officer after formal charge is
made (even if prosecutor is not present)
Standard for Effective Counsel
Strickland v. Washington
o “Right to counsel is the right to the effective assistance of counsel”
o Purpose of effective assistance of counsel is to ensure fair trial
o “Benchmark for judging any claim of ineffectiveness must be whether counsel’s
conduct so undermined the proper functioning of the adversarial process that
the trial cannot be relied on as having produced a just result”
Strickland Test
D must show that counsel’s performance was deficient
o Show that counsel made errors so serious that counsel was
not functioning as the “counsel” guaranteed by Sixth
Amendment
Below level of representation (reasonableness
under prevailing professional norms and totality of
circumstances)
Strong presumption that counsel’s conduct falls
within wide range of reasonable professional
assistance (challenged action “might be considered
sound trial strategy”)
Counsel performance may be determined or
substantially influenced by D’s own statements or
actions
E.g., D’s statements focus D’s investigation
so counsel fails to investigate other areas
D must show that deficient performance prejudiced defense
o Show counsel’s errors were so serious as to deprive D of a
fair trial, a trial whose result is reliable
Generally not presumed; D must affirmatively
prove prejudice
Must show that there is a reasonable probability
that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different;
a reasonable probability is a probability sufficient
to undermine confidence in the outcome
o Error by counsel, even if professionally unreasonable, does
not warrant setting aside the judgement of a criminal
proceeding if the error had no effect on the judgment
o Federal Courts of Appeals held proper standard for
attorney performance is “reasonably effective assistance”
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o Purpose of Sixth Amendment: Guarantee counsel in order
to ensure D has assistance necessary to justify reliance on
outcome of proceeding; thus, counsel error, even
professionally unreasonable ones, do not warrant setting
aside judgment if error had no effect on judgment
Cronic (Per Se Violations)
o When Prejudice is Assumed: (1) Actual or constructive denial of assistance of
counsel, (2) counsel entirely fails to subject prosecution’s case to meaningful
adversarial testing, (3) when counsel is burdened by an actual conflict of interest
(Cuyler) b/c counsel breaches duty of loyalty
Florida v. Nixon (Strategic Decisions)
o D counsel, who was experienced in capital defense, thought best strategy was to
concede guilt, thereby preserving credibility in urging leniency during penalty
phase
o D counsel explained to D strategy at least three times; D was unresponsive
o “When counsel informs the D of the strategy counsel believes to be in D’s best
interest and D is unresponsive, counsel’s strategic choice is not impeded by any
blanket rule demanding the D’s explicit consent”
o “If counsel’s strategy, given the evidence bearing on D’s guilt, satisfied the
Strickland standard, that is the end of the matter”
o Experience is not really calculated, so long as they follow the standards of
practice
o Takeaway: Deference to counsel strategy; but Strickland still applies
McCoy v. LA: (This is not a Strickland case) experienced counsel, facts
were terrible against client (McCoy), he murdered wife’s family members
and caught with forensic evidence. Lawayer was going to mount
diminished capacity to save his life (argued that he didn’t know what he
was doing). McCoy diagreed, said he wouldn’t accept anything less than
not guilty. Court held that he had the right to make this decision, it is up
to the defendant. Counsel can decide how to present the defense, client
picks the defense.
Takeaway: cant raise defense unless client agrees to it.
Note* Issue of competency. If incompetent, why does client get a
say? Well whether someone is competent or not is a low bar.
Question is can they be restored to competence. If they can drug
them up and they can meet the standard of competency (know
whats going on, aware) then they can be present at trial and have
a say.
Other Cases
o Wiggins v. Smith (Investigation and Safe Harbor)
Compliance with ABA standards for criminal justice, especially those
setting forth a lawyer’s responsibility in investigating a case, may provide
counsel a safe harbor against claims of ineffective assistance of counsel
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o Rompilla (Failure to Investigate)
Ineffective assistance of counsel in a capital case for counsel not to
request D’s file from prior cases that would have shown that he suffered
from mental health issues and childhood deprivations that could have
been presented to the jury in mitigation of sentence”
o Porter v. McCollum (Facts for Ineffective Assistance)
Ineffective assistance for counsel to fail to discover or present evidence
during penalty phase that D had a long and distinguished military record,
had been victim of childhood abuse, and had impaired mental capacity
o Bobby v. Van Hook (Extensive Investigation)
After doing extensive investigation, it may be reasonable for defense
counsel to decide not to seek out all possible evidence that could assist a
defendant. Try to find a reasonable defense.
Facts: Van Hook sentenced to death for murder in 1985. District
court denied request for habeas relief based on ineffective
assistance of counsel, 6 circuit reversed and granted review. Used
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ABA guidelines published in 2003 to conclude Van Hook’s counsel
were deficient in investigating and presenting mitigating evidence
at the penalty face. Van Hook and 6 Circuit considered the fact
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that his counsel began their mitigation investigation too late
(waiting until he was found guilty, days before sentencing hearing
to dig into his background – record shows they actually started
contacting lay witnesses earlier and often; record shows counsel
spoke to his mother 9 times within a week after the indictment
and spoke to aunt. Also reviewed military history meeting with VA
seven weeks before trial to obtain med records.) the fact that their
investigation was unreasonable (van hook and 6 stated that
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counsel found only “a little info about his traumatic childhood
experience”. They held that what little info they did discovered
should’ve prompted them to inquire more. However, SC held that
counsel, like Strickland, made the “decision not to seek more”
mitigating evidence “than was already in hand” and this decision
fell “well within the range of professional reasonable
judgements.”) and the fact that this prejudiced Van Hook (SC held
that there was no prejudice since the affadavits submitted by
witnesses not interviewed shows that their testimony would have
“added nothing of value” and that the information they would
have brought in had already been heard by the trial court from
other sources.) Takeaway: Sixth Circuit should not have applied
2003 ABA guidelines to evaluate the effectiveness of counsel
conducted in 1980’s.
o Nix v. Whiteside (No Right to Insist Dishonest/Unethical Behavior)
D was not denied right to counsel because counsel told D that he would
withdraw if client perjured himself on witness stand
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Right to Self-Representation
Faretta V. CA
o B/c self-representation deprives traditional benefits of right to counsel, D must
“knowingly and intelligently” waive benefits
Here:
D “clearly and unequivocally” declared that he wanted to
represent himself and did not want counsel
Record showed D was literate, competent, and understanding; he
was voluntarily exercising informed free will
o Must be timely asserted; cannot be used to delay trial
o No right to disrupt proceedings
o Hybrid:
Counsel of Record: you represent client
Farretta Counsel: You are co-counsel with the defendant (pretty rare)
Advisory Counsel: You get to advise client if they allow you. Cant run to
you at trial and ask if he can object at counsel table but you can advise
him on some legal issues
Standby Counse: Court will appoint standby council (attorney becomes
glorified law clerk). They cannot question witnesses, cant object, cannot
practice.
Defendant Alone: Completely Pro se
Self-Representation Spectrum
o Counsel of Record (No Self-Representation)
o Farretta Counsel (Co-counsel; standby counsel over D’s objection)
o Appointment of Stand-By Counsel
McKaskle: Appointment of standby counsel is permitted but standby
counsel cannot act in a manner that will destroy the jury’s perception
that D is representing himself
o No Constitutional Right to Hybrid Counsel (Where appointment of counsel that
allows D to perform some of “core functions” of lawyer)
o
Incompetent D’s
o Indiana v. Edwards (Heightened Competency Standard)
Constitution permits judges to make realistic account of particular D’s
mental capacities by asking whether D who seeks to conduct his own
defense at trial is mentally to do so
No right to self representation on appeal
Enemy Combatants
o Right to counsel is fundamental; even enemy combatants have them
o Right to counsel is about fair proceedings and the ability to rely on the results of
fair proceedings
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Plea Bargaining
Fed. R. Crim. P. 11
o (c) Bars court from participating in plea discussions
o (c)(3) Court has power to accept, reject, or defer its decision as to whether to be
bound by proposed plea agreement (plea agreements ordinarily do not bind a
court in sentencing decision; merely commit prosecution to make certain
sentencing recommendations)
(c)(1)(C) a defendant can plead guilty contingent to court’s acceptance of
binding sentence plea agreement
Constitutionality of Plea Bargain
Brady v. U.S.
o Plea bargaining does not put pressure on a defendant to forgo right to a jury trial
o Plea bargaining is constitutional (even tough bargains)
o Threats, Misrepresentation, Improper Behavior are prohibited
o Analysis of Voluntariness:
Considered all of relevant surrounding circumstances
Potential for heavier sentence at trial (want to avoid death
penalty) is still voluntary
Brady first pleaded not guilty; prior to change of plea to guilty he
was subjected to no threats or promises in face-to-face
encounters with authorities; had competent counsel and full
opportunity to assess the advantages and disadvantages of a trial
as compared with those attending a plea of guilty; there was no
hazard of an impulsive or improvident response to a seeming but
unreal advantage; plea of guilty was entered in open court before
a judge obviously sensitive to requirements of law with respect to
guilty pleas; therefore, plea was voluntary
Threatening with Charges
o Bordenkircher
Prosecutors have the option of either charging defendant at outset with
most serious crimes and then reducing charges as part of a plea bargain
or charging defendant with lesser charges and then threatening more
serious charges if defendant refuses plea offer
Plea bargains stem from “mutuality of advantage” for wanting to avoid
trial
Effective Assistance of Counsel
General
Missouri v. Frye
o Lapse of prosecution offer of plea bargain, a proposal that offered terms more
lenient than terms of guilty plea
o Constitutional right to counsel (effective counsel) extends to plea bargaining
because the right applies to all “critical” stages of the criminal proceedings
17
o Defense counsel has affirmative duty to communicate formal offers from
prosecution to accept a plea on terms and conditions that may be favorable to
accused
o In addition to deficient performance, defendant must demonstrate prejudice
Demonstrate a reasonable probability would have accepted earlier plea
offer had been offered effective assistance)
Demonstrate reasonable probability the plea would have been entered
without prosecution canceling it or trial court refusing to accept (if court
had authority to exercise discretion under state law)
Lafler v. Cooper
o Defendant was offered plea bargain, but by advice by counsel, rejected; went to
trial and received guilty verdict and a harsher sentence than plea bargain
o Defendant must show prejudice: show there is reasonable probability that, but
for counsel’s unprofessional errors, result of proceeding would have been
different
o Adequate assistance of counsel cannot be defined or enforced without taking
account of the central role of plea bargaining plays in securing convictions and
determining sentences
o Remedy: context dependent and court may conduct evidentiary hearing
Court may exercise discretion
Keep the trial sentence
Split difference of trial sentence and plea offer
Prosecution “reoffer” plea bargain
Guilty Pleas
Boykin v. Alabama (Impermissible Waiver)
o Guilty plea is to be made voluntarily (waiver of three constitutional rights:
privilege against compulsory self-incrimination, right to trial by jury, right to
confrontation)
o Presuming waiver from a silent record is impermissible; judge must leave record
adequate for any review
o Defendant in Boykin’s conviction was overturned because trial court failed to
obtain from defendant full waiver of rights
Henderson v. Morgan (Voluntary Plea)
o Guilty plea cannot be voluntary and intelligent if defendant received no real
notice of the true nature of the charge (the first and most universally recognized
requirement of due process)
o Issue in case was no admission of requisite intent for charge because defendant
was not notified
o Rule: must provide adequate notice of the offense to which pleading guilty (every
element of the offense) in order to be voluntary
Hill v. Lockhart
o Defense counsel erred, but because defendant would have accepted the plea
anyways, failed to show prejudice (D must show that there is a reasonable
18
probability that, but for counsel’s errors, he would not have pleaded guilty and
would have insisted on going to trial)
Padilla v. Kentucky
o Defendant pleaded guilty and got deported because of counsel’s erroneous
advice that pleading guilty would not affect immigration status
o Counsel has affirmative duty to advise defendant that offense to which pleading
guilty would result in removal from country
Rule 11 Procedural Requirements for Entering Guilty Pleas
o Guilty plea is valid only if it demonstrates on record that defendant has
knowingly and voluntarily waived constitutional rights
o Rule 11(b)(1) requires judge address defendant personally in open court to
inform defendant and determine that defendant personally understands that
defendant will be waiving following rights by pleading guilty:
Right not to plead guilty
Right to a jury trial
Right to be represented by counsel
Nature of charge to which the defendant is pleading
Any mandatory minimum penalty
Any maximum possible penalty
Defendant’s waiver of certain appeal rights
Government’s right to use defendant’s statements in a perjury
prosecution
o Court must advise the defendant of likely consequences of pleading guilty and
establish that there is a factual basis for the plea
o Court must ensure that plea is voluntary and did not result from force, threats of
force, or promises other than those in a plea agreement
o Plea must be entered on record
Withdrawal of Guilty Plea
o Rule 11: before a guilty plea is accepted, defendant may withdraw a guilty plea
for any reason
However, once defendant has entered plea and court has accepted, guilty
plea may be withdrawn only for a “fair and just” reason
Remedies for Breach of Plea Agreements
Defense Remedies: Withdraw plea or specific performance
o Santobello
Petitioner bargained and negotiated for particular plea in order to secure
dismissal of more serious charges but also on condition that no sentence
recommendation would be made by the prosecutor
There was a lapse in prosecutorial procedure (another prosecutor
replaced the prosecutor who negotiated the plea)
Staff lawyers in prosecutor’s office have burden of “letting left hand know
what right hand is doing”; inadvertent breach of agreement is immaterial
Defendant is entitled to enforcement of negotiated plea agreement
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Prosecution: Agreement null and void
o Ricketts v. Adamson
Provision in agreement stated that breach by either part would make it
null and void and parties shall be returned to positions before agreement
Double jeopardy issue (original charge was converted to a lesser charge;
after breach, original charge reinstated)
State did not force defendant’s breach; defendant chose to breach by
advancing an interpretation of agreement that proved erroneous
Thus, agreement, because of defendant’s breach, is null and void, and no
double jeopardy issue to enforce agreement (instituting original charge)
Trial
General Jury Trial
Sources of Right to Jury Trial
o Article III, Sec. 2
o Sixth Amendment
Duncan v. Louisiana
o Jury trial is so fundamental that it is incorporated into the states
o All but “petty” charges: if D faces more than 6 months of jail, then right to jury
o Modifying Cases
Baldwin
Any possible sentence greater than 6 months (charged with
offenses carrying a maximum possible penalty of more than six
months)
Blanton
Losing license is not enough for jury trial (including immigration
civil states)
Nachtigal
Fines do not implicate right to jury; $5000 is not enough
Lewis v. U.S.
Stacking up of “petty” offenses is not enough
Size of Jury
o Williams v. Florida
No requirement for 12-person jury
Cannot go lower than 6 person jury (Ballew)
Unanimous Verdicts
o Apodaca
Do not need unanimous juries for criminal trials
Burch: But may need unanimous juries for small juries (6 people)
Types of Verdicts
o General verdicts (“guilty or not guilt” for charges)
o Special verdicts (require where juries answer specific questions regarding case;
use of deadly weapon)
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o Inconsistent verdicts (juries can acquit on some charge but find guilty on other;
e.g., acquit on use of gun and guilty on bank robbery; or acquit on guilty but
acquit on gun)
Court will defer on inconsistent verdicts; will not overturn
Jury Nullification (Dougherty)
Recognizing power of jurors to nullify but rejecting request to
instruct to instruct jurors of right to nullify
Jury Selection
Getting from Venire (Jury Pool) to Petit (Actual Jury)
o No right to representative jury; just “impartial” jury (Taylor v. Louisiana)
o Challenge for Cause (e.g., opposition to death penalty, police officer spouse,
conflict of interests, based on beliefs); includes also other personal excuses (e.g.,
lack of childcare arrangements, sick parents, high risk for Covid)
Unlimited Strikes for Cause
o Peremptory Challenges
Limited number of strikes for no cause for any reason EXCEPT;
discretionary
Batson
o Cannot use peremptory challenge to discriminate on the
basis of race
o Marshall Dissent: Best solution is to remove peremptory
challenges altogether
o Batson Challenge (p. 1065) :
If pattern of discriminatory peremptory strikes, D
objects and provides prima facie case for the record
(must include race as a reason for the record)
After objection, burden shifts to state for race-
neutral reason (not hard to do)
Court decides on credibility of explanation
o Batson Issues
Standing?
Yes (Powers v. Ohio)
Civil Cases?
Yes (Edmonson)
Defense Peremptory Challenges
Yes (Georgia v. McCollum)
Batson and Other Forms of Discrimination
Ethnicity?
o Yes (Hernandez v. NY); but court
upheld challenge b/c P argued that
Spanish speaking juror might not
follow translations offered by
interpreters who would testify at
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trial; based on their demeanor
during voir dire, court held that
argument was supported
Gender?
o Yes; Batson’s violations apply to all
types of discrimination that receive
heightened scrutiny (protected
classes)
Remedy for Batson Violation [?]
Pretrial Publicity/Trial Rights
Principles
Constitutional Principles
o First Amendment Right to report; public’s right to know
o Sixth Amendment Right to “speedy and public trial”
Due Process
o Irwin v. Dowd
Whether D was prejudiced by pretrial publicity
Facts:
Prosecutor released press statement that D had confessed to
murders
Change of Venue was granted to neighboring county; another
motion to change venue farther away was denied; further motions
to change venue were denied throughout voir dire
Court:
It is not required that jurors be totally ignorant of facts and issues
involved; sufficient for DP if juror can lay aside impression or
opinion and render a verdict based on evidence presented in
court
Extreme pretrial publicity here prejudiced D to the point where
there is a DP violation to right to fair trial
Dealing with Pretrial Publicity
Closing Courtroom to Reporters
o Gannett Co (Favored Closure)
Upheld trial judge’s decision to close a suppression hearing from media
and public
If there is a First Amendment right, it must be balanced against D’s right
to a fair trial
o Richmond Newspapers (Balancing Test: Fair Trial v. 1A)
D moved to close murder trial from public and reporters
Court reversed trial court’s closure order; presumption of openness
inheres in very nature of a criminal trial under our system of justice
22
First Amendment provides presumption that press and public will have
access to criminal trials and this right can be compromised only if there is
an overriding government interest set forth in findings by court (i.e.,
courts must balance D’s right to a fair trial against public’s and media’
First Amendment right to access)
o Global Newspaper (Case by Case)
Struck down VA’s statute that created per se rule excluding press and
public during testimony of underage victim in sex crime case
Per Se exclusions unconstitutional
o Press Enterprise I (Open Jury Selection)
SC struck down an order closing jury selection from public and media
The trial court did not consider alternatives to closure; absent such
considerations, closure order was unconstitutional
o Press Enterprise II (Preliminary Hearings)
First Amendment right of access to criminal proceedings applies to
preliminary hearings that that have traditionally been open to the public
Two-Factor Reasoning: (1) a tradition of openness to proceeding in
question must exist and (2) proceeding must be trial-like
Other Remedies
o Sheppard v. Maxwell
Judge failed to consider wide range of remedies to reduce prejudice;
conviction was overturned b/c of prejudice caused by circus atmosphere
Possible Alternatives
Courtroom and courthouse premises are subject to court control;
should have adopted stricter rules governing use of courtroom by
media
Limit number of reporters permitted
Insulated witnesses
Should have made some effort to control release of leads,
information, and gossip to press by police officers, witnesses, and
counsels
Control statements made to news media by counsel, witnesses,
coroner, and police officers (e.g., prosecution repeatedly made
evidence available to media which was never offered in trial)
Possible Alternatives (FROM CLASS, NOT CASE)
Continuance, Change of Venue, Sequestration of Jury, Gag Order
o Limiting Lawyers’ Extrajudicial Comments
ABA Model Rules 3.6: Participating counsel shall not make any
“extrajudicial statement that the lawyer knows or reasonably should
know will be disseminated by means of public communication and will
have substantial likelihood off materially prejudicing an adjudicative
proceeding in the matter”
NO VIOLATION: Gentile v. State Bar of Nevada
23
o First Amendment violation to punish lawyer for a prepared
statement before trial where he accused police of
committing the crime D was charged with; but lawyer can
be punished, without violating First Amendment, if make
statements that violate Rule 3.6
o Lawyer was disciplined for statements about (1) evidence
demonstrated client’s innocence, (2) likely thief was police
detective, and (3) other victims were not credible
o Much of this information was already available outside the
lawyer’s statements (obviating any potential for prejudice)
VIOLATION: Cutler
o D Counsel’s persistent attempts to try D’s case in the
media, despite court’s repeated warnings, belie any notion
that he did not intend these particular comments to
prejudice the proceedings, or that he did not recklessly
disregard the orders
Prior Restraints
o Nebraska Press Association v. Stuart
Lower court ordered restraining the publication or broadcasting of
accounts of confessions or admissions made by accused or facts strongly
implicative of accused in widely reported murder case
Court: Prior restraints on speech and publication are the most serious and
the least tolerable infringement on First Amendment rights
Following Sheppard, seek alternative methods
Latest Word
o Skilling
No DP issue due to pretrial publicity; D failed to prove enough to be
granted presumption of prejudice
Prominence does not necessarily produce prejudice, and juror
impartiality does not require ignorance
Presumption of prejudice attends only extreme cases (e.g., Sheppard)
Cameras
o Chandler v. Florida
D objected to camera at trial
No per se violation of DP because of camera or other devices
D has right on review to show that media’s coverage of case
compromised the ability of jury to judge him fairly; alternatively, D might
show that broadcast coverage of particular case had adverse impact on
trial participants sufficient to constitute denial of DP
Trial Rights
Right to Presence (Part of Right to Confrontation)
Illinois v. Allen
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o Confrontation Clause guarantees right of accused to be present in courtroom at
every stage of trial
o But right can be abridged if D is obstreperous (noisy, disorderly, disruptive so as
to be impossible to carry on trial)
o Court: Trial judges have sufficient discretion to meet circumstances of each case
Three Constitutionally permissible ways:
Bind and gag D
Cite for contempt
Remove from courtroom until promises to conduct properly
o Fed. R. Crim. P 43(c) recognizes that D may be tried in absentia if engages in
disruptive conduct or voluntarily absents himself after trial starts
Deck v. Missouri (Visible Shackling)
o Court: Constitution forbid use of visible shackles during penalty phase, as it
forbids use during guilt phase, unless there is a justified essential state interests
(e.g., courtroom security)
Right to Confront Witness
MD v. Craig (Child Sex Abuse Witnesses)
o Face-to-Face confrontation not necessary if (1) necessary public policy and (2)
reliability is assured (oath, cross-examination, observation of witness’ demeanor)
Crawford (“Testimonial” Evid. and Hearsay Exception)
o If evidence is testimonial, then cannot be admissible unless declarant is
unavailable and subject to prior cross-examination
o Testimonial?
Davis v. Washington (Ongoing Emergency)
Not testimonial if related to ongoing emergency
Michigan v. Bryant (TOC Test)
Must view DURATION/SCOPE of emergency in each CONTEXT
(someone using a gun; greater danger to public/ongoing
emergency)
TAKEAWAYS:
o (1) Objective test not subjective
o (2) A focus upon both DECLARANT and INTERROGATOR
(based on TOC: What is declarant’s reason for giving
testimony? What is State’s reason asking Q’s?)
o (3) Formality v. Informality (FORMALITY suggests lack of
emergency; evid. of INFORMALITY shows ongoing
emergency)
o (4) Gun/Condition of Victim (affects duration/scope of
emergency)
Ohio v. Clark (Child Abuse)
Child’s statements about abuse was non-testimonial; primary
purpose of teacher’s questions was to protect child; child was
making statements not for court
25
Right from Self-Incrimination
Griffin v. California
o Unconstitutional to comment on D’s exercise of Fifth Amendment privilege; jury
can infer what it wants, but court cannot solemnize silence of accused into
evidence against him
o Timidity about getting on witness stand is not necessarily indication of guilt
Fifth Amendment includes right to remain silent during sentencing phase (Mitchell)
D waives right when chooses to testify; thus, cannot answer only some questions but all
Due Process and Improper Prosecutorial Comments
Darden v. Wainwright
o Prosecutor made several offensive comments reflecting an emotion reaction to
case
o Court: Comments were improper but did not deprive D of a fair trial
Prosecutors’ argument did not manipulate or misstate evidence
Comments did not implicate other specific rights of accused (i.e., right to
counsel or right to remain silent)
Much of objectionable content was invited by or was responsive to
opening summation of defense
Jurors were repeated instructed that their decision was to be made on
basis of evidence alone; arguments of counsel were not evidence
Right to Present Defense
Chambers v. Mississippi
Holmes v. South Carolina
Role of Jury and Proof Beyond Reasonable Doubt
In re Winship
o Due Process Clause protects accused against conviction except upon proof
beyond a reasonable doubt of every fact necessary to constitute the crime with
which he is charged
Translation: Each element of a crime be proved beyond a reasonable
doubt
o Modifications
IMPERMISSIBLE: Instruction telling jurors to presume that a person who
commits an act intends the consequences of that act (Sandstrom v.
Montana)
PERMISSIBLE: Courts may give jurors instructions that allow jurors to
make permissible presumptions, but not required to do so
PERMISSIBLE: Shifting burden to D to prove affirmative defenses does not
violate due process (Patterson v. N.Y.)
ON REVIEW: No presumption of innocence on review; only trial court
(Virginia v. Jackson)
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Sentencing
Indeterminate
Typically affords broad discretion to judges in imposing sentences; anywhere from
probation to maximum authorized sentence
Fell out of favor for inconsistent sentencing
Determinate
Tend to limit court discretion by setting guidelines and mandatory sentences courts must
follow; created via legislature
Adopted as a way to rectify perceived disparities in sentencing
Calculating sentences under Federal Sentencing Guidelines is multistep process (p. 1153)
Strategy:
o Facts to look for:
Is the sentence increased by the judge?
Is the judge following mandatory sentencing guidelines?
What is the judge basing the sentence increase on?
Facts from jury verdict
Facts from plea bargain
Facts related to commission of crime (e.g., mens rea)
Mandatory Minimums
Another way legislatures restrict judicial discretion at sentencing
Controversial: Breyer: “Statutory minimums generally deny the judge the legal power to
depart downward, no matter how unusual the special circumstances that call for
leniency. ... [These statutes] tend to transfer sentencing power to prosecutors, who can
determine sentences through the charges they decide to bring”
U.S. v. O’Brien
o Requires that key aspects of crimes triggering mandatory minimum sentences be
treated as elements of the crime and not just sentencing factors determined by
the sentencing court
Alleyne v. U.S.
o The Sixth Amendment right to trial by jury requires a jury to determine facts that
increase a mandatory minimum sentence
Apprendi v. New Jersey (Enhanced Sentencing Schemes and Sixth Amendment)
o Intro: “The constitution protects every criminal defendant against conviction
except upon proof beyond a reasonable doubt of every fact necessary to
constitute the crime with which he is charged and the right to demand a jury find
him guilty of all the elements of the crime with which he is charged”
o A judge may not increase a defendant’s sentence based on facts never pleaded
or proved to a jury but rather found by the court as it violates due process
o Any fact that increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a reasonable doubt (if
the inquiry go to the “commission of the offense”)
o Every defendant has the right to insist that the prosecutor prove to a jury all facts
legally essential to punishment
27
Blakely v. Washington (Plea Deals and Apprendi)
o The relevant statutory maximum is not the maximum sentence a judge may
impose after additional findings; it is the maximum that may be imposed without
them
o Judge’s increasing of sentence after the additional finding of “deliberate cruelty,”
which was not included in the plea agreement, violated Apprendi (hence, Sixth
Amendment right to trial by jury)
o Right is implicated whenever a judge seeks to impose a sentence that is not
solely based on facts reflected in the jury verdict or admitted by the defendant
U.S. v. Booker (Federal Sentencing Guidelines)
o Blakely applies to Federal Sentencing Guidelines
o Federal Sentencing Guidelines are no longer mandatory but only advisory
o Sentence must be reasonable
Rita v. U.S.
Sentences falling within advisory guidelines are presumptively
reasonable
Gall v. U.S.
Appellate courts must give great deference to the sentencing
court’s decision to impose a sentence outside the range of the
guidelines
Trial court need not show “extraordinary” circumstances or
employ a rigid mathematical approach; rather, after correctly
calculating the applicable guidelines range, sentencing court
should base sentence on all relevant factors in the case and
determine whether it wants to deviate from guidelines and by
how much
In review, appellate court must first ensure that sentencing court
made no significant procedural errors and then consider the
sentence under an abuse-of-discretion standard
Under this approach, it was reasonable to sentence Gall to
probation and not the guidelines sentence of 30-37 months (Gall
was college student caught up in drug conspiracy)
Federal Sentencing (18 U.S.C. §3553(a))
18 U.S.C. §3553(a) provides that federal offender’s sentence should be based on:
o (1) the nature and circumstances of the offense and the history of the defendant;
o (2) the need for the sentence imposed –
(A) to reflect the seriousness of the offense, to promote respect for the
law, and the provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from future crimes of the defendant
(D) to provide the defendant with needed educational or vocation
training, medical care, or other correctional treatment in the most
effective manner;
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o (3) the kinds of sentences available;
o (4) [the applicable sentencing guidelines];
o (5) any pertinent policy statement ... ;
o (6) the need to avoid unwarranted sentence disparities ... ; and
o (7) the need to provide restitution to any victims of the offense
Eight Amendment “Cruel and Unusual Punishment”
Standard of determination is proportionality
Current approach: determining whether the sentence “fits the crime”
o Rummell v. Estelle
Defendant was sentenced under recidivist statute to life imprisonment
with possibility of parole in 12 years for third felony (obtaining 120.75 by
false pretenses)
Previous two convictions were fraudulent use of a credit card (80) and use
of forged check (28.36)
Supreme Court: sentence did not amount to cruel and unusual
punishment under disproportionate test (Court heavily weighted
possibility of parole unlike in Solem)
o Solem v. Helm (Proportionality Review)
Guiding principle: proportionality between offense and punishment
Sentences reviewed under Eighth Amendment should be guided by
objective factors:
(1) gravity of the offense and harshness of penalty
(2) compare sentences imposed on other criminals in same
jurisdiction; if more serious crimes are subject to same penalty or
to less serious penalty that is “some indication that the
punishment at issue may be excessive”
(3) compare the sentences imposed for commission of same crime
in other jurisdictions
o Harmelin v. Michigan (Limit to Proportionality Review)
Proportionality should govern; but Harmelin’s sentence (mandatory life
imprisonment without possibility of parole) was not disproportional given
nature of crime (possessing 672 grams of cocaine)
Kennedy’s Four Principles
(1) deference should be given to legislatures as to the appropriate
sentence for specific crimes
(2) Eighth Amendment “does not mandate adoption of any one
penological theory”
(3) “marked divergences both in underlying theories of sentencing
and the length of prescribed prison terms are the inevitable, often
beneficial, result of federal structure”
(4) proportionality review “should be informed by objective
factors to the maximum possible extent”
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Three Strikes Law and Proportionality
Lockyer v. Andrade
o Defendant with prior felonies for burglary and drug use sentenced to 50 years to
life for stealing children’s videos worth 150 from Kmart
Ewing v. California (Constitutional Question of Three Strikes)
o 25 to life under three strikes for stealing golf clubs is not grossly disproportionate
Per Se Eighth Amendment Violations
Juvenile Sentencing
Graham v. Florida
o Per se unconstitutional to impose on a juvenile offender the sentence of life
without possibility of parole (LWOP) for non-homicidal offenses
Miller v. Alabama
o Two 14-year olds were convicted of murder and sentenced to LWOP
o LWOP sentences for those under 18 at the time of crime violates Eighth
Amendment’s prohibition on “cruel and unusual punishments”
o Retroactive under Montgomery v. Louisiana
Excessive Fines and Forfeitures
Eighth Amendment bars imposition of “excessive fines”
Similar proportionality approach for determining “cruel and unusual punishment” is
used to determine whether a fine or forfeiture is excessive
o U.S. v. Bajakajian
Fine?
Forfeitures (or payments in kind) are “fines” if they constitute
punishment for an offense
Traditional civil in rem forfeitures are “inapposite because such
forfeitures were historically considered nonpunitive,” thus outside
the domain of Excessive Fines Clause
o Depends what is being prosecuted against; if against
property itself (in rem), then no Eighth Amendment issue,
but Eighth Amendment issue if sought and obtained via
criminal conviction of defendant personally
Excessive?
Principal of proportionality controls analysis
o Violation if punitive forfeiture is grossly disproportionate
to gravity of defendant’s offense
o Forfeiture of 357,144 for solely a reporting offense was
excessive
Death Penalty
Constitutionality
Furman v. Georgia
o Majority did not reject nor approve of death penalty
Narrowest (controlling) opinion: death penalty as it was currently applied
was unconstitutional
30
o Standards for Constitutional Implementation of Death Penalty
Left to states to adopt procedures that would satisfy Court’s concerns
(arbitrary application)
Mandatory capital punishment statutes undermines respect for dignity of
individual (Woodson v. NC)
Capital punishment systems that allowed jurors to weigh the aggravating
circumstances of a capital D’s case against mitigating factors (Gregg v.
Georgia: death penalty is not disproportionate if a jury properly considers
factors that make D deserving of the most severe punishment)
Death penalty must be proportionate not only to crime committed but
also to D’s role in crime (Edmund v. Florida)
Death penalty may be imposed in felony-murder cases in which D
demonstrates “reckless disregard for human life” and plays a major role in
crime (Tyson v. AZ)
Per Se Prohibitions
Disability
o Atkins v. Virginia
Cannot put to death someone who has mental disability
Subsequently adopted totality of circumstances
Non-Homicide
o Rape of Adult: No (Coker v. Georgia)
o Child-Rape: There has to be murder; child rape is terrible, but not same as
murder (Kennedy v. Louisiana)
Juveniles
o Cannot execute juveniles (17 years and 364 days old) at time of crime (Roper v.
Simmons)
Double Jeopardy
Fifth Amendment: “No person shall be subject for the same offence to be twice put in
jeopardy of life and limb”
Incorporated to States: Benton v. Maryland
Double Jeopardy’s Three Separate Protections:
o Second prosecution for same offense after acquittal
o Second prosecution for same offense after conviction
o Multiple punishment for same offense
Policy Support
o Prohibits prosecution from trying a defendant, getting an acquittal, appealing
acquittal, and then retrying D
Habeas Corpus Relief
Habeas corpus claims can ONLY concern federal constitutional issues
31
Claims of ineffective assistance of counsel arising from the post-conviction relief process
can be raised in federal court.
A federal court considering a habeas petition must address all of the following issues
o 1) Is the habeas petition time barred? (Antiterrorism and Effective Death Penalty
Act has created a strict time limits for when a habeas petition must be filed. If
petition is untimely, it must be dismissed).
o 2) Is it a first habeas petition by the individual or is it a successive petition
(Second, third, fourth petition?) If it is a successive petition, it must be dismissed
unless the federal court of appeals approves its filing based on finding that the
case meets stringent requirements for successive petitions.
o 3) Has there been exhaustion of state procedures for all claims presented in the
habeas petition? If there has not been exhaustion for all claims, then the entire
petition must be dismissed
o 4) Does the petition rely on an already established rule of criminal procedure, or
does it seek recognition of a new rule? If new rule, petition must be dismissed
unless it is an extraordinary rule that applies retroactively.
o 5) Is it a claim that can be heard on habeas corpus? Generally, individuals are
allowed to relitigate their constitutional claims on habeas, but there is a notable
exception: Fourth amendment claims by state prisoners generally cannot be
raised on habeas corpus as long as there was a full and fair hearing in state court.
o 6) Has there been a procedural default in the sense of a failure to follow the
required procedures of the forum, state or federal, in which the person was
convicted? For example, were the claims raised in the habeas petition properly
raised at trial, or were they defaulted for failure to raise the? If a claim was
procedurally defaulted, it must be dismissed unless there is either a showing of
good cause for the filature and prejudice to not being heard on habeas or a
showing of likely actual innocence.
o 7) If the claim is heard, can the federal court hold an evidentiary hearing, or is it
limited to the record that was in the state court?
o Can the federal court provide habeas corpus relief? For example, under the
provision of the Antiterrorism and Effective Death Penalty Act, a federal court
may grant habeas corpus relief only if the state court decision is contrary to an
unreasonable application of law clearly established by the Supreme Court.
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