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LEARNING OBJECTIVES When you complete this chapter, you should be able to:

� Describe the prosecutor’s role, prosecutor’s discretion, and the issues surrounding prosecutorial misconduct.

� Explain the concept of joinder and reasons for it. � Explain the purpose, functions, and powers of a grand jury. � Outline the development of the right to counsel. � Be familiar with the courtroom workgroup and its functions.

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CHAPTER OUTLINE

Prosecutors, Grand Juries, and Defense Attorneys

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OUTLINE

Introduction: Bringing Charges and Mounting a Defense

The Prosecutor The Charging Decision

Deciding Not to Prosecute Challenging the Decision Not to Prosecute

Restrictions on Bringing Charges Unfair and Selective Prosecution Vindictive Prosecution

Dealing with Overzealous Prosecutors Recourse

Joinder Multiple Charges against the Same Individual Charges against Multiple Defendants

The Grand Jury How a Grand Jury Is Constructed

Duration Size Voting Requirements Selection of Members

Secrecy of Grand Jury Proceedings Disclosure of Witness Testimony to the Defense Disclosure of Witness Testimony to Other Parties

Rights of Witnesses Testifying before Grand Juries Right to Testify Being Advised of the Right Not to Testify Right to Counsel

Investigative Powers of the Grand Jury Subpoenas Grants of Immunity Findings of Contempt

Challenging a Grand Jury Indictment The Defense Attorney

The Right to Counsel in a Criminal Prosecution Due Process Origins The Contemporary Sixth Amendment

Approach The Right to Counsel at Other Stages

of the Criminal Process The Sixth Amendment Approach The Fifth Amendment Approach The Due Process Approach

Waiver of the Right to Counsel Indigent versus Nonindigent Defendants’ Right

to Counsel of Their Choice Effective Assistance of Counsel

When the Right Applies The Meaning of Effective Assistance

The Courtroom Work Group Summary Key Terms Key Cases Review Questions Web Links and Exercises

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INTRODUCTION

Bringing Charges and Mounting a Defense

This chapter turns attention to the roles of the prosecutor, grand jury, and defense attorney. In a way, this chapter does not flow directly from the preceding chapter; for example, the right to counsel attaches to varying degrees well before the pretrial process is set into motion. Similarly, when the services of the grand jury are required, it can perform an investigative function well before the arrest stage of the criminal process. Prosecutors, too, perform a great deal of work before the pretrial process. Nevertheless, the functions of all three parties will be considered here for the sake of an orderly presentation. Just understand that the prosecutor, grand jury, and defense attorney do not necessarily enter the picture after the pretrial process has commenced.

This chapter begins by focusing on the prosecutor and, in particular, the decision whether or not to charge. In this vein, this chapter also introduces restrictions on the prosecutor’s charging decision as well as the notion of joinder. Most of the discussion will be limited to the prosecutor’s role leading up to a criminal trial. To delve into the prosecutor’s role at trial (e.g., the order and method by which the state’s case is presented) would take the discussion into another area. The prosecutor’s role at trial is best understood in terms of the law of evidence, a topic not typically taken up in criminal procedure class.

Next, this chapter turns attention to the grand jury. The function of the grand jury is a source of some confusion to criminal procedure students. As such, the role of the grand jury is considered in detail, particularly when a grand jury is required and what roles it performs. This chapter also discusses the secrecy of grand juries, the rights of witnesses testifying before grand juries, and the various methods for challenging indictments. As with the section on the prosecutor, the grand jury section of this chapter is pretrial in nature. Indeed, the grand jury’s function ceases once the charging decision has been made.

Finally, this chapter turns to the role of the defense attorney in criminal procedure. The Fourth Amendment and interrogation sections of this text have already discussed the function of defense counsel at various stages of the criminal process. Those functions are revisited briefly in this chapter, but the focus is primarily on the defense attorney’s role at trial. The bulk of the defense attorney section of this chapter concerns the accused’s right to effective assistance of counsel. This chapter also discusses the waiver of counsel and the distinctions between privately retained counsel and public defenders. It concludes with some attention to the so-called courtroom work group.

THE PROSECUTOR

The prosecutor performs a valuable function in reinforcing the notion that a crime is an offense against the state. In fact, Article II, Section 3, of the U.S. Constitution states that the executive branch of the federal government “shall take Care that the Laws be faith- fully executed.” This constitutionally mandated duty to execute the law usually falls on prosecutors. Of course, police officers, as part of the executive branch, do their part to execute the laws, but a strong argument can be made that prosecutors possess even more authority because of their ability to decide whether to bring formal charges against suspected criminals.

Just as police officers have the discretion to decide whether to make an arrest, so, too, do prosecutors have enormous discretion. As the Supreme Court noted in Bordenkircher v.

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Hayes (434 U.S. 357 [1978]), “[S]o long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely on his discretion” (p. 364). Figure 11.1 presents portions of a federal prosecutor’s charging document (a.k.a., “information”).

Prosecutors do not have unlimited discretion, however. There are important restrictions on their decision to charge. Some stem from the Constitution, while others stem from statutes and other related sources.

FIGURE 11.1 Portions of a Federal Prosecutor’s Charging Document (Information)

United States District Court Northern District Of Illinois

Eastern Division

COUNT ONE

The UNITED STATES ATTORNEY charges:

1. At times material to this information: a. Defendant ANTHONY MATTHEWS owned and controlled Express Mortgage,

a licensed Illinois mortgage brokerage located on Wabash Street and on Western Boulevard in Chicago, Illinois.

b. Bank One was a financial institution, the deposits of which were insured by the Federal Deposit Insurance Corporation (“FDIC”). Wells Fargo Home Mortgage was a subsidiary of Wells Fargo Bank.

c. MIT Lending and St. Francis Mortgage were mortgage companies engaged in the business of issuing mortgage loans for the purchase of residential property.

2. Beginning no later than 2003 and continuing through at least 2006, at Chicago, in the Northern District of Illinois, Eastern Division, and elsewhere,

ANTHONY MATTHEWS,

defendant herein, together with other co-schemers known to the United States Attorney, devised, intended to devise, and participated in a scheme to defraud and to obtain money by means of materially false and fraudulent pretenses, representations, and promises, which scheme affected financial institutions. More specifically, defendant schemed to fraudulently obtain over $1 million in mortgage loan proceeds from various banks and mortgage lending institutions, including Bank One, Wells Fargo Bank. MIT Lending. St. Francis Mortgage and Wells Fargo Home Mortgage, among others (hereinafter referred to collectively as “lenders”), as described below.

Source: http://www.usdoj.gov/usao/iln/pr/chicago/2008/pr0619_01i.pdf (accessed November 7, 2008).

UNITED STATES OF AMERICA ) )

v. ) No._____ )

ANTHONY MATTHEWS ) Violations: Title 18, United States Code, ) Section 1343

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The Charging Decision

The prosecutor generally has the authority to decide whether to proceed with charges. This is known as prosecutorial discretion. He or she can elect not to charge for a number of reasons, even over strenuous objection on the part of the complainant or victim. The prosecutor’s discretion can be further manifested by the act of plea bargaining (see Chapter 12); that is, he or she can accept a guilty plea for a lesser offense than the one charged. Finally, prosecutors sometimes have to answer to authorities that mandate, or at least strongly encourage, prosecution.

DECIDING NOT TO PROSECUTE The most obvious reason for nonprosecution is lack of evidence. The prosecutor may determine that, based on the evidence presented to him or her by the police, the suspect is innocent. In such an event, there would be no point in proceeding to trial on the slight chance that a conviction would be obtained. Even if the prosecutor believes the suspect is guilty, if there is not enough evidence to obtain a conviction, then he or she will likely elect not to prosecute.

There are other reasons not to prosecute, as well. For example, even if the state’s case is strong, there may be an incentive not to prosecute. In particular, if it appears the defense’s case is stronger, then it may behoove the prosecutor to proceed with charges against a different individual.

Nonetheless, prosecutors are human and, as such, can be influenced by the facts of a particular case. Say, for instance, that a law mandates life in prison for growing in excess of 1,000 marijuana plants. Assume further that a suspect apprehended for violating such a law has a spotless record, is married, and has four children. Would life in prison be the best punishment for such an individual, or would a fine community service or other sanction be more appropriate? This decision is up to the prosecutor, and depending on the nature of the case, he or she may elect not to proceed with charges.

As another example, California’s “three strikes” law requires life in prison for third-time felons. The first two felonies that qualify as “strikeable” under California’s law can only be of certain varieties; typically, they are serious offenses. However, the third felony can be of any type. Critics of California’s “three strikes” law often point to the man who was sentenced to prison for life for stealing a slice of pizza. Had the prosecutor who charged this individual been more sensible in exercising his or her discretion, then public outcry may not have been so significant.

Another reason for not charging traces to economic concerns. Simply put, it is not possible, given the resource restrictions that exist in most public agencies (prosecutors’ offices included), to proceed with charges against every suspect. Not

DECISION-MAKING EXERCISE 11.1

Reasons for Nonprosecution

Another controversial reason for nonprosecution is a by-product of the United States’ so-called war on drugs. Civil asset forfeiture statutes permit the forfeiture of money and property tied to criminal activity—most frequently, the illicit drug trade. Many asset forfeiture statutes permit forfeited proceeds to go to the executive branch, which usually means the police but sometimes prosecutors. Some have argued that when there is not enough evidence to proceed with a criminal case, prosecutors can opt to pursue civil forfeiture,

for which the burden of proof is generally lower. And as an added bonus, if a forfeiture action succeeds and a person’s property is forfeited to the state, then the prosecutor may reap a financial reward for selecting a civil proceeding instead of a criminal one. Is the possibility of civil asset forfeiture a legitimate reason not to prosecute? That is, if a prosecutor chooses not to press criminal charges against someone, instead opting for forfeiture, should the decision be considered constitutional?

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having the time to build a case because of a high caseload may effectively force a prosecutor to be lenient with certain individuals.

CHALLENGING THE DECISION NOT TO PROSECUTE A prosecutor’s decision not to press charges is rarely challenged, but on occasion, higher authorities may get involved when they disagree with a prosecutor’s decision. Failure to press charges can sometimes be questioned by a court, which can provide relief to individuals who disagree with the prosecutor’s decision (e.g., NAACP v. Levi, 418 F. Supp. 1109 [D.D.C. 1976]). Other times, a prosecutor’s supervisor or other high-ranking official may step in. According to one source, “Many states by statute confer upon the attorney general the power to initiate pros- ecution in cases where the local prosecutor has failed to act. In practice, however, attorneys general have seldom exercised much control over local prosecuting attorneys.”1

Another way of preventing prosecutors from abusing their discretion (i.e., by failing to act) is to require them to abide by standards of conduct. These standards help prosecutors decide which cases are worthy of prosecution as well as what charges to pursue, all the while ensuring that they act in accordance with the law. Figure 11.2 presents portions of the Code of Conduct for Judicial Employees, published by the Administrative Office of the U.S. Courts.

Some U.S. jurisdictions require court approval of a prosecutor’s decision not to pursue charges. The prosecutor is typically required to explain to the court in writing his or her reasons for failing to prosecute. While this approach may seem sensible on its

1 Y. Kamisar, W. LaFave, and J. Israel, Modern Criminal Procedure, 9th ed. (St. Paul, MN: West, 1999), p. 894.

FIGURE 11.2 Code of Conduct for Judicial Employees

A. Code of Conduct for Judicial Employees.

CANON 1: A JUDICIAL EMPLOYEE SHOULD UPHOLD THE INTEGRITY AND INDEPENDENCE OF THE JUDICIARY AND OF THE JUDICIAL EMPLOYEE’S OFFICE

An independent and honorable Judiciary is indispensable to justice in our society. A judicial employee should personally observe high standards of conduct so that the integrity and independence of the Judiciary are preserved and the judicial employee’s office reflects a devotion to serving the public. Judicial employees should require adherence to such standards by personnel subject to their direction and control. The provisions of this code should be construed and applied to further these objectives. The standards of this code shall not affect or preclude other more stringent standards required by law, by court order, or by the appointing authority.

CANON 2: A JUDICIAL EMPLOYEE SHOULD AVOID IMPROPRIETY AND THE APPEARANCE OF IMPROPRIETY IN ALL ACTIVITIES

A judicial employee should not engage in any activities that would put into question the propriety of the judicial employee’s conduct in carrying out the duties of the office. A judicial employee should not allow family, social, or other relationships to influence official conduct or judgment. A judicial employee should not lend the prestige of the office to advance or to appear to advance the private interests of others. A judicial employee should not use public office for private gain.

Figure 11.2 continued

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342 Part 4 • The Beginnings of Formal Proceedings

CANON 3: A JUDICIAL EMPLOYEE SHOULD ADHERE TO APPROPRIATE STANDARDS IN PERFORMING THE DUTIES OF THE OFFICE

In performing the duties prescribed by law, by resolution of the Judicial Conference of the United States, by court order, or by the judicial employee’s appointing authority, the following standards apply:

A. A judicial employee should respect and comply with the law and these canons. A judicial employee should report to the appropriate supervising authority any attempt to induce the judicial employee to violate these canons.

Note: A number of criminal statutes of general applicability govern federal employees’ performance of official duties. These include:

18 U.S.C. § 201 (bribery of public officials and witnesses);

18 U.S.C. § 211 (acceptance or solicitation to obtain appointive public office);

18 U.S.C. § 285 (taking or using papers relating to government claims);

18 U.S.C. § 287 (false, fictitious, or fraudulent claims against the government);

18 U.S.C. § 508 (counterfeiting or forging transportation requests);

18 U.S.C. § 641 (embezzlement or conversion of government money, property, or records);

18 U.S.C. § 643 (failing to account for public money);

18 U.S.C. § 798 and 50 U.S.C. § 783 (disclosure of classified information);

18 U.S.C. § 1001 (fraud or false statements in a government matter);

18 U.S.C. § 1719 (misuse of franking privilege);

18 U.S.C. § 2071 (concealing, removing, or mutilating a public record);

31 U.S.C. § 1344 (misuse of government vehicle);

31 U.S.C. § 3729 (false claims against the government).

In addition, provisions of specific applicability to court officers include:

18 U.S.C. § § 153,154 (court officers embezzling or purchasing property from bankruptcy estate);

18 U.S.C. § 645 (embezzlement and theft by court officers);

18 U.S.C. § 646 (court officers failing to deposit registry moneys);

18 U.S.C. § 647 (receiving loans from registry moneys from court officer).

This is not a comprehensive listing but sets forth some of the more significant provisions with which judicial employees should be familiar.

B. A judicial employee should be faithful to professional standards and maintain competence in the judicial employee’s profession.

C. A judicial employee should be patient, dignified, respectful, and courteous to all persons with whom the judicial employee deals in an official capacity, including the general public, and should require similar conduct of personnel subject to the judicial employee’s direction and control. A judicial employee should diligently discharge the responsibilities of the office in a prompt, efficient, nondiscriminatory, fair, and profes- sional manner. A judicial employee should never influence or attempt to influence the assignment of cases, or perform any discretionary or ministerial function of the court in

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a manner that improperly favors any litigant or attorney, nor should a judicial employee imply that he or she is in a position to do so.

D. A judicial employee should avoid making public comment on the merits of a pending or impending action and should require similar restraint by personnel subject to the judicial employee’s direction and control. This proscription does not extend to public statements made in the course of official duties or to the explanation of court procedures. A judicial employee should never disclose any confidential information received in the course of official duties except as required in the performance of such duties, nor should a judicial employee employ such information for personal gain. A former judicial employee should observe the same restrictions on disclosure of confidential information that apply to a current judicial employee, except as modified by the appointing authority.

E. A judicial employee should not engage in nepotism prohibited by law.

Note: See also 5 U.S.C. § 3110 (employment of relatives); 28 U.S.C. § 458 (employment of judges’ relatives).

F. Conflicts of Interest.

(1) A judicial employee should avoid conflicts of interest in the performance of offi- cial duties. A conflict of interest arises when a judicial employee knows that he or she (or the spouse, minor child residing in the judicial employee’s household, or other close relative of the judicial employee) might be so personally or financially affected by a matter that a reasonable person with knowledge of the relevant facts would question the judicial employee’s ability properly to perform official duties in an impartial manner. . . .

CANON 4: IN ENGAGING IN OUTSIDE ACTIVITIES, A JUDICIAL EMPLOYEE SHOULD AVOID THE RISK OF CONFLICT WITH OFFICIAL DUTIES, SHOULD AVOID THE APPEARANCE OF IMPROPRIETY, AND SHOULD COMPLY WITH DISCLOSURE REQUIREMENTS

A. Outside Activities. A judicial employee’s activities outside of official duties should not detract from the dignity of the court, interfere with the performance of official duties, or adversely reflect on the operation and dignity of the court or office the judicial employee serves. Subject to the foregoing standards and the other provisions of this code, a judicial employee may engage in such activities as civic, charitable, religious, professional, educational, cultural, avocational, social, fraternal, and recreational activities, and may speak, write, lecture, and teach. If such outside activities concern the law, the legal system, or the administration of justice, the judicial employee should first consult with the appointing authority to determine whether the proposed activities are consistent with the foregoing standards and the other provisions of this code. . . .

CANON 5: A JUDICIAL EMPLOYEE SHOULD REFRAIN FROM INAPPROPRIATE POLITICAL ACTIVITY

A. Partisan Political Activity. A judicial employee should refrain from partisan political activity; should not act as a leader or hold any office in a partisan political organization; should not make speeches for or publicly endorse or oppose a partisan political organi- zation or candidate; should not solicit funds for or contribute to a partisan political organization, candidate, or event; should not become a candidate for partisan political office; and should not otherwise actively engage in partisan political activities.

B. Nonpartisan Political Activity. A member of a judge’s personal staff, clerk of court, chief probation officer, chief pretrial services officer, circuit executive, and district court

Figure 11.2 continued

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face, the Supreme Court has been somewhat critical of judicial review of prosecutorial decisions. In Wayte v. United States (470 U.S. 598 [1985]), the Court gave this reason for avoiding judicial oversight: “Such factors as the strength of the case, the prosecution’s general deterrence value, the Government’s overall enforcement plan are not readily susceptible to the kind of analysis the courts are competent to make” (p. 606).

In general, if the prosecutor’s decision not to press charges stems from legitimate factors, such as lack of evidence or case backlog, then the decision should be honored. The prosecutor’s decision should be honored even if he or she agrees to dismiss criminal charges if the defendant agrees not to file a civil suit.

Restrictions on Bringing Charges

This section turns to situations in which charges are filed but for inappropriate reasons. In other words, whereas the previous sections considered situations in which the pros- ecutor fails to bring charges, this section considers situations in which the prosecutor cannot bring charges.

There are two primary reasons a prosecutor cannot bring charges against an accused individual: (1) if the prosecution is unfair and selective (i.e., targets a certain individual unfairly) and (2) if the prosecution is pursued for vindictive reasons. The following subsections focus in detail on these situations.

Before going ahead, it is important to point out that prosecutors may occasionally bring charges, say, for vindictive reasons. Assuming such conduct comes to the attention of someone in a higher position of authority, the prosecuting decision will essentially be overruled. That is, the charges against the accused will be dropped, or in the event that the person is charged and convicted, his or her conviction will be overturned. However, if a prosecutor brings charges for inappropriate reasons and this decision goes uncontested, then the charges will most likely stand.

UNFAIR AND SELECTIVE PROSECUTION If the prosecutor’s decision to press charges is discriminatory in nature, the Fourteenth Amendment’s equal protection clause can be violated. For example, in Yick Wo v. Hopkins (118 U.S. 356 [1886]), the Supreme Court stated:

Though the law itself be fair on its face and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution. (pp. 373–374)

executive should refrain from nonpartisan political activity such as campaigning for or publicly endorsing or opposing a nonpartisan political candidate; soliciting funds for or contributing to a nonpartisan political candidate or event; and becoming a candidate for nonpartisan political office. Other judicial employees may engage in nonpartisan political activity only if such activity does not tend to reflect adversely on the dignity or impartiality of the court or office and does not interfere with the proper performance of official duties. A judicial employee may not engage in such activity while on duty or in the judicial employee’s workplace and may not utilize any federal resources in connec- tion with any such activity.

Note: See also 18 U.S.C. chapter 29 (elections and political activities).

Source: From Code of Conduct for Judicial Employees. Available Online: http://www.uscourts.gov/

RulesAndPolicies/CodesOfConduct.aspx (accessed February 16, 2011).

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Oyler v. Boles (368 U.S. 448 [1968])

Simply put, if an individual is targeted for prosecution merely because he or she falls into a certain group (e.g., a minority group), then his or her constitutional rights will be violated. This is known as selective prosecution.

Since Yick Wo, the Court has become more specific as to what constitutes selective prosecution. In Oyler v. Boles (368 U.S. 448 [1968]), the Court held that prosecution becomes selective and in violation of the equal protection clause only when it is inten- tional and is intended to target “a certain class of cases . . . or specific persons.” In that case, the defendant presented evidence that he was the only individual of six sentenced under a particular statute. The Court held that this was not discriminatory because the defendant was unable to demonstrate intent by the prosecutor or provide evidence that he fit the group targeted for prosecution. In fact, the Court noted:

The conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation. Even though the statistics in this case might imply a policy of selective enforcement, it was not stated that the selection was deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification. (p. 456)

DECISION-MAKING EXERCISE 11.2

The Decision Not to Charge

Following are the facts reported by the U.S. District Court for the District of Columbia in NAACP v. Levi, discussed previously on Page xx:

On May 31, 1971, Carnell Russ, a 24-year-old black, while operating his motor vehicle on an Arkansas highway, was arrested for an alleged speeding violation by Jerry Mac Green, a white state trooper. Russ was accompanied by his wife, their minor children, and an adult cousin. The trooper directed him to the county court- house. Russ complied and upon arrival, parked his vehicle and was escorted into the court- house by the arresting trooper and two other white law enforcement officers, Charles Ratliff and Norman Draper. Minutes later, Russ returned to the vehicle where his family awaited. He requested and received from his wife sufficient money to post the necessary collateral. He then joined the three officers who were close

by observing his actions. The four retraced their steps with Russ again in custody. A short time thereafter, Mrs. Russ first observed two of the officers leave and minutes later an ambulance depart from the rear of the courthouse area where her husband had just entered in the officers’ custody. She later learned that Mr. Russ, while under detention, had been shot in the center of his forehead by Ratliff and then transported to a hospital. Green and Draper were the sole witnesses to the shooting. Her husband died from the gunshot wound within hours. (p. 1112)

Ratliff was indicted and found not guilty of voluntary manslaughter pursuant to an investigation by the state police. Criminal charges were not brought against the other two officers, and the case was closed. Does the prosecutor’s decision not to pursue charges against the other officers seem reasonable?

DECISION-MAKING EXERCISE 11.3

Another Decision Not to Charge

Chief Lord, of the Springfield Police Department, arrested Nancy Simpson for tampering with a witness, Terri Flanders, the alleged victim of an assault by a friend of Simpson’s. Simpson hired an attorney, and discussions with the local prosecutor ensued. Simpson agreed to sign a written release—in

which she promised not to sue the city, its officials, or the alleged victim of the assault—if the prosecutor dismissed the criminal charges. The criminal charges were dropped. Is fear of being sued a valid reason not to prosecute?

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Blackledge v. Perry (417 U.S. 21 [1974])

Since the Oyler decision, the courts have imposed a three-pronged test for determining whether prosecution violates equal protection. It must be shown that (1) similarly situated individuals were not prosecuted, (2) the prosecutor intended for this to happen, and (3) the decision resulted from an arbitrary, rather than rational, classification scheme. An arbitrary classification scheme would be based on, for example, race or sex. A rational classification scheme would be one that considers the evidence against each individual without regard to the color of his or her skin, country of origin, religious preference, sex, or other such criteria.

Filing charges for discriminatory reasons is not the only type of unfair prosecu- tion. Sometimes, prosecutors aggressively pursue conspicuous individuals and open themselves to criticism. This is not to say that highly public lawbreakers cannot be charged, however. Indeed, the courts have justified prosecution on the highest charge of certain individuals for the sole purpose of discouraging other people from committing the same offense. As one court noted, “Selective enforcement may . . . be justified when a striking example or a few examples are sought in order to deter other violators” (People v. Utica Daw’s Drug Co., 16 A.D.2d 12 [1962], p. 21).

In addition to being criticized for prosecuting high-profile offenders, prosecutors can also get into trouble for targeting the most significant offender in a group of offenders. To clarify, think of the conspicuous person cases discussed in the previous paragraphs, in which prosecutors opted to charge one offender instead of another, even though both were suspected of having committed the same offense. When a group of individuals is suspected of having committed various degrees of the same offense, why does the prosecutor only pursue the individual suspected of having committed the most serious offense?

An example of a case illustrating this practice is State v. McCollum (159 Wis.2d 184 [App. 1990]). In that case, the court dismissed prostitution charges against nude female dancers. In its decision, the court pointed out that the male patrons of these dancers were not charged, even though Wisconsin law criminalized their behavior, as well.

A fourth method by which prosecutors can open themselves to allegations of unfair and selective prosecution is through what is known as pretextual prosecution. This occurs when the prosecutor lacks the evidence to charge someone with a particular crime and so charges him or her with a lesser crime. However, prosecutors are rarely chastised for this type of conduct. For example, in United States v. Sacco (428 F.2d 164 [9th Cir. 1970]), a court noted that allowing a prosecutor to pursue lesser charges when the evidence to mount a more serious charge does not exist is perfectly acceptable.

The Supreme Court recently decided a case dealing with alleged discriminatory prosecution. Specifically, in United States v. Bass (536 U.S. 862 [2002]), the Court considered a defendant’s request for discovery of the Department of Justice’s charging practices in capital cases. He alleged that blacks were disproportionately charged in such cases and that he was charged because of his race. His argument did not succeed, however.

VINDICTIVE PROSECUTION If a prosecutor’s charging decision is motivated by revenge, then the resulting charge violates the due process clause of the Fourteenth Amendment. Specifically, if a prosecutor charges an individual simply because he or she is exercising his or her constitutional rights, such charges will not be allowed. This is known as vindictive prosecution.

This was the decision reached in Blackledge v. Perry (417 U.S. 21 [1974]). In that case, the defendant was convicted in a lower court for misdemeanor assault with a deadly weapon. After the defendant filed an appeal with the county superior court, the prosecutor obtained an indictment charging the offender with felony assault for the same conduct. The defendant pled guilty to this offense and was sentenced to five to seven years. Notwithstanding the obvious double-jeopardy concerns (covered further

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in Chapter 14) raised by the prosecutor’s conduct in this case, the Supreme Court con- cluded that “vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial” (p. 33). The Court concluded further that such punishment after the fact must be overturned, unless the prosecutor can explain the increase in charges.

The Supreme Court’s decision in Blackledge applies only in limited contexts, a point that cannot be overemphasized. Namely, it applies only after (1) the charged indi- vidual exercises his or her legal rights and (2) the prosecutor increases the charges after the first trial. With regard to the latter restriction, this means that if the prosecutor threatens the defendant with more serious charges during the pretrial phase, the Fourteenth Amendment will not be violated. New evidence could come along during this phase, which may legitimately warrant a more serious charge.

However, in United States v. Goodwin (457 U.S. 368 [1982]), the Supreme Court noted that it is possible for a prosecutor to act vengefully during the pretrial phase. It is possible, the Court noted, that “a defendant in an appropriate case might prove objectively that the prosecutor’s [pretrial] charging decision was motivated by a desire to punish him for doing something that the law plainly allowed him to do” (p. 384). Furthermore, while “the defendant is free to tender evidence to the court to support a claim that enhanced charges are a direct and unjustifiable penalty for the exercise of a procedural right . . . only in rare cases [will] a defendant be able to overcome the presumptive validity of the prosecutor ’s actions through such a demonstration” (p. 384). In other words, if the more serious charging decision is made prior to trial, it is presumed that the prosecutor is not acting in a vindictive fashion, and the defendant must prove otherwise.

DECISION-MAKING EXERCISE 11.4

What Is Selective Prosecution?

In July 1980, a Presidential Proclamation was issued requiring certain young males to register with the Selective Service System (the information is used for drafting potential soldiers if the need arises). David Elders refused to register and even went so far as the writing letters to government officials, including the President, in which he declared no

intention to register. Elders’ case, along with cases involving other men who refused to register, was placed in a “Selective Service” file. Only cases in the Selective Service file were selected for prosecution. Elders was prosecuted for failure to register. He claims the prosecution was selective. Is he right?

DECISION-MAKING EXERCISE 11.5

What Is Pretextual Prosecution?

The district attorney (D.A.) suspects that Corinne Dwyer is running a call-girl service out of her suburban home. The D.A. does not have enough evidence to prosecute Dwyer for her prostitution activities, but he does have sufficient evidence to prosecute Dwyer for abandoning an appliance. Dwyer had put a refrigerator at the end of her driveway with a “Free” sign on it, in violation of a statute that provides that “any person who discards or abandons or leaves in any place accessible to children, any refrigerator, icebox, deep freeze

locker, . . . which is no longer in use, and which has not had the door removed or the hinges and such portion of the latch mechanism removed to prevent latching or locking of the door, is guilty of a misdemeanor.” (This is an actual offense under the California Penal Code, Section 402b.) Dwyer is thus charged and argues that she has been unfairly targeted for pretextual prosecution, in violation of her Fourteenth Amendment right to equal protection. What should the court decide?

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Dealing with Overzealous Prosecutors

By charging offenders, prosecutors serve as advocates for the government. In this capacity, they are immune from suit for charging suspects with crimes.2 This is reason- able because imagine what would happen to the criminal process if prosecutors could be sued at every turn for charging offenders!

Prosecutors also act as advocates when they argue the government’s case. And they can do almost anything in this capacity to secure a conviction without fear of being held liable. Prosecutors have been shielded from such actions as using false statements at pretrial hearings (Burns v. Reed, 500 U.S. 478 [1991]), using false testimony at trial (Imbler v. Pachtman, 424 U.S. 409 [1976]), failing to disclose exculpatory evidence (Kalina v. Fletcher, 522 U.S. 118 [1997]), fabricating evidence, influencing witnesses, and even breaching plea agreements. In a recent case, Connick v. Thompson, (No. 09-571 [2011]), the Supreme Court also held that a district attorney’s office may not be held liable for failing to train its prosecutors in the event of a single Brady violation (i.e., failure to disclose exculpatory evidence).

Not everyone agrees prosecutors should enjoy absolute immunity, especially in light of recent DNA exonerations and high-profile scandals. According to one critic, prosecutors should only enjoy qualified immunity.

Absolute immunity frustrates the purpose of civil rights legislation by failing to deter frequent and egregious misconduct. It also hinders the development of constitutional standards and the implementation of structural solutions for systemic problems. Prosecutorial liability—with the safeguard of qualified immunity to prevent vexatious litigation—is necessary to ensure the integrity of the criminal justice system.3

Qualified immunity was introduced in Chapter 2 in the Section 1983 context. In the prosecution context, it works somewhat differently. Prosecutorial qualified immunity attaches (1) when prosecutors act as administrators or investigators and (2) when they make reasonable mistakes. Alternatively, if the plaintiff in a lawsuit can show a prosecutor acted as an administrator or investigator and violated clearly established constitutional law, the prosecutor can be held liable.

2 M. Z. Johns, “Reconsidering Absolute Prosecutorial Immunity,” Brigham Young University Law Review 2005 (2005): 53–154. 3 Ibid., p. 56.

DECISION-MAKING EXERCISE 11.6

What Is Vindictive Prosecution?

Cesar Fresco was arrested for uttering (i.e., giving, offering, cashing, or passing or attempting to pass) a forged document, which is a felony punishable by a prison term of 2–10 years. He has an extensive criminal history and has committed forgery in the past. The prosecutor offers a plea bargain to Fresco, giving him two choices: (1) He can plead guilty to the crime and the prosecutor will recommend a five-year sentence;

or (2) he can reject the plea, be prosecuted under the habitual offender statute, and face a potential life term. The prosecu- tor tells Fresco, “If you do not accept this agreement, I will prosecute you as a habitual offender and you will go to prison for the rest of your life.” Fresco rejects the plea and is convicted. Later, he sues, claiming that the prosecution was vindictive. Will he succeed?

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United States v. Lane (474 U.S. 438 [1986])

RECOURSE Despite the immunity they enjoy, there is recourse for dealing with overzealous prosecutors. Such recourse generally comes in one of four varieties:

• Private admonition or reprimand • Public reprimand • Suspension from law practice • Permanent disbarment

Prosecutors’ supervisors and state bar associations can take the first three actions. The fourth action, disbarment, is usually taken by bar associations alone. How often are prosecutors punished for their wrongdoing? Not very often. According to the Center for Public Integrity, out of more than 11,000 cases of prosecutorial misconduct, only two prosecutors were disbarred.4 Reprimand was the most common sanction.

The story of Mike Nifong, the prosecutor in the infamous Duke lacrosse case (where three white Duke University lacrosse players were accused of rape by a black stripper), sheds some light on the problem of prosecutorial misconduct. He was the prototypical overzealous prosecutor. For example, he repeatedly made statements to the press that were unsupported and controversial. He also continued to pursue criminal charges, even as new evidence that would have made securing a conviction difficult came to light.

The state bar association filed complaints against Nifong. He was ultimately disbarred and held in contempt of court. Also, since some of Nifong’s actions may not have been consistent with the role of an “advocate,” his immunity may have been “qualified” rather than absolute. He was sued by the wrongfully accused lacrosse players and their families and claimed bankruptcy.

Joinder

Joinder refers to a situation in which the prosecutor either (1) brings multiple charges against the same individual in the same trial or (2) brings charges against multiple indi- viduals in the same trial. In determining whether either is appropriate, two questions must be asked: First, based on the jurisdiction in question, is joinder appropriate? Second, if joinder is appropriate, will it be unfairly prejudicial? An answer of no to the first question and yes to the second requires what is known as a severance.

The question of whether joinder is appropriate is best resolved prior to trial, but sometimes joinder is not addressed until after trial. Assume, for example, that a single defendant is charged in the same trial for assault and robbery. Assume further that he is convicted on both counts. If he later claims that joinder was inappropriate (which, incidentally, means the burden of proof falls on him) and succeeds with this argument, what will the result be? According to the Supreme Court in United States v. Lane (474 U.S. 438 [1986]), if this joinder has “a substantial and injurious effect or influence in determining the jury’s verdict” (p. 449), then new and separate trials must be held.

MULTIPLE CHARGES AGAINST THE SAME INDIVIDUAL According to the Federal Rules of Criminal Procedure, multiple charges can be brought against the same individual under the following circumstances: when the charges arise out of (1) the same criminal event (e.g., robbery of a convenience store and assault when fleeing the scene); (2) two separate criminal acts that are tied together in some fashion (e.g., a convenience store robbery to obtain cash to buy and sell illegal drugs); or (3) two criminal acts that are the

4 Center for Public Integrity, Harmful Error: Investigating America’s Local Prosecutors, http://projects.publicin- tegrity.org/pm (accessed November 7, 2008).

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same or similar in character.5 This latter circumstance is somewhat vague, but an example should clarify: If a serial killer uses the same modus operandi against his victims, he may be tried for several homicides in the same criminal trial.

When the defense argues against joinder, there are a number of motivating concerns. First, there is the concern that the jury (or the judge, if a bench trial is held) will not consider the criminal acts for which the accused is charged separately. Another concern is that the jury will view all the evidence against the accused in a cumulative, rather than separate, fashion. Say, for example, that the prosecution presents eyewitness testimony against a defendant accused of robbery. Also assume that the prosecution presents a murder weapon allegedly used by the defendant on the victim of the robbery. The jury may consider together the eyewitness testimony and the murder weapon and arrive at the conclusion that the accused is guilty. But if the robbery and homicide were tried separately, the jury may not arrive at this conclusion so easily. Finally, another defense argument against joinder is that by trying an individual on several charges in the same trial, he or she will have difficulty asserting separate defenses to the criminal acts at issue.

An obvious problem with joinder is the possibility of double jeopardy. When a prosecutor tries a person on several related crimes in the same trial, he or she must do so carefully. In short, the criminal acts alleged must be similar but not identical. Double jeopardy is considered in Chapter 14, but for now, an example may prove helpful: If the prosecutor charges an individual for first-degree as well as second-degree murder of the same victim in the same trial and the individual is convicted of both offenses, then it will be deemed unconstitutional.

CHARGES AGAINST MULTIPLE DEFENDANTS The second form of joinder is when multiple defendants are charged in the same criminal trial. The Federal Rules of Criminal Procedure state, “Two or more defendants may be charged in the same indictment or information if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses.”6 In other words, joinder of defendants is reserved in most instances for crimes of conspiracy (i.e., crimes where two or more individuals plot during a criminal act).

As with joinder of charges, joinder of defendants raises a number of concerns. For instance, the jury may get confused as to who, if anyone, is guilty and simply convict all of the defendants. Or the jury may convict one defendant who is perhaps less guilty than another defendant who is clearly guilty simply because they associated together. Also, it is conceivable that one defendant may testify against another but then refuse to answer questions on cross-examination, citing self-incrimination concerns.

There are clearly arguments against joinder, concerning both charges and defendants. However, there is one clear argument in favor of joinder—namely, efficiency. Allowing prosecutors to join charges and defendants reduces court backlog and speeds up the administration of justice.

THE GRAND JURY

According to the Fifth Amendment, “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury.” This part of the Fifth Amendment cannot be fully appreciated without considering the time in which it was written. The framers favored grand jury indictments in certain

6 Ibid.

5 Federal Rules of Criminal Procedure, Rule 8. Available online at http://www.law.cornell.edu/rules/frcrmp/

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Hurtado v. California (110 U.S. 516 [1884])

The pool from which a grand jury is selected must be a fair cross-section of the community.

situations for fear that the prosecutor, a representative of government, could become too powerful in terms of making charging decisions. Indeed, the framers shared a clear sentiment that government should be kept in check, and the grand jury was one method of ensuring this.

Despite that intent, the grand jury is no longer so independent. Instead, the grand jury is now highly dependent on the actions of the prosecutor. Grand juries still perform important investigative functions, and they are quite powerful in terms of, for instance, being able to subpoena witnesses and records. But their role today is tied closely to the prosecutor. In fact, almost every state makes the prosecutor the main legal adviser of the grand jury and requires him or her to be present during all grand jury sessions. However, in some states, the grand jury functions independently of the prosecutor.

Even though the Fifth Amendment suggests that indictment by grand jury is guaranteed for certain offenses, this right has not been incorporated. In the 1884 decision of Hurtado v. California (110 U.S. 516 [1884]), the Supreme Court stated that indictment by a grand jury is not a right guaranteed by the due process clause of the Fourteenth Amendment. The Court stated:

[W]e are unable to say that the substitution for a presentment or indictment by a grand jury of [a] proceeding by information after examination and commit- ment by a magistrate, certifying to the probable guilt of the defendant, with the right on his part to the aid of counsel, and to the cross-examination of the witnesses produced for the prosecution, is not due process of law. (p. 538)

It should be emphasized that just because the right to grand jury indictment has not been incorporated to the states, this does not mean that states do not require this method of prosecution. Several states do require that, for the most part, felonies are to be prosecuted only by grand jury indictment. The same is true for the federal system. Most states, however, permit prosecution by indictment or information. See Figure 11.3 for an overview of the mechanisms for filing serious charges in each state.

So, since most states permit indictment or information, under what circumstances is one or the other method used? Typically, grand jury indictment will be the charging mechanism of choice when (1) the case is of great public and/or political significance; (2) the investigative power of the grand jury is useful; (3) the grand jury may be able to

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Alaska

Alabama

Arizona Arkansas

California

Colorado

Connecticut

Delaware

Georgia

Hawaii

Idaho

Illinois

Iowa

Kansas Kentucky

Louisiana

Maine

Massachusetts

Michigan

Minnesota

Florida

Missouri

Montana

Nebraska

Nevada

New Hampshire

Vermont

New Jersey

Maryland

New Mexico

New York

North Carolina

Indiana

North Dakota

South Dakota

Ohio

Oklahoma

Oregon

Pennsylvania

Rhode Island

South Carolina

Tennessee

Virginia

West Virginia

Wisconsin

Texas

Wyoming

Utah

Washington

Key

Grand jury indictment required

Grand jury indictment required only in capital and life imprisonment cases

Grand jury indictment not required

Mississippi

FIGURE 11.3 Charging Methods for Serious Crimes by State

issue an indictment more quickly compared to holding a preliminary hearing and then issuing an information indictment; or (4) one or more witnesses is hesitant to speak in open court, preferring the secrecy surrounding grand jury proceedings.

How a Grand Jury Is Constructed

A grand jury can be impaneled either by the court or by the prosecutor. Usually, the court has this responsibility, but prosecutors are becoming increasingly able to decide whether a grand jury is necessary.

The term grand jury should not be construed as singular; in larger jurisdictions, several grand juries may be acting at the same time. One or more could be performing investigative functions, and one or more others could be working on specific cases.

Source: D. B. Rottman and S. M. Strickland, State Court Organization, 2004 (Washington, DC: National Center for State Courts,

2004). Note that some states requiring grand jury indictment do so only for certain offenses. For example, Texas requires grand jury

indictments for felonies, not misdemeanors.

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Chapter 11 • Prosecutors, Grand Juries, and Defense Attorneys 353

7 Ibid., Rule 6.

DURATION Once a grand jury has been convened, its members serve for a specified period of time. A term can last from one to three months but sometimes less, if the court or prosecutor believes that further deliberation is unnecessary. Under the Federal Rules of Criminal Procedure, a regular grand jury cannot serve for a period longer than 18 months, unless the court extends the service “upon a determination that such extension is in the public interest.”7 Fortunately, people selected for grand juries do not have to meet every day; usually, a grand jury meets several days a month.

SIZE Grand juries are larger than ordinary trial juries. In the past, grand juries consisting of 24 or so people were not uncommon. Today, grand juries are usually smaller, or in the neighborhood of 16–20 people. One state, Tennessee, permits a grand jury of 13 individuals, but the voting requirements in that state are fairly restrictive. See Figure 11.4 for an illustration of grand jury size requirements by state.

Alaska 12–18

Alabama 18

Arizona 12–16

Arkansas 16

California 11, 19,

or 23

Colorado 12 or 23

Connecticut 1–3

Delaware 10 or 15

DC 16–23

Georgia 16–23

Hawaii 16

Idaho 16

Illinois 16

Iowa 7

Kansas 15

Kentucky 12

Louisiana 12

Maine 13–23

Massachusetts 23

Michigan 13–17

Minnesota 16–23

Mississippi 15–20

Florida 15–18

Missouri 12

Montana 11

Nebraska 16Nevada

New Hampshire

23 Vermont 18–23

New Jersey 23

Maryland 23

New Mexico 12

New York 16–23

North Carolina 12–18

Indiana 6

North Dakota 8–11

South Dakota 6–10

Ohio 9

Oklahoma 12

Oregon 7

Pennsylvania 23

Rhode Island 13–23

South Carolina

Tennessee 13

Virginia 5 or 7

West Virginia

Wisconsin 17

Texas 12

Wyoming 2

Utah 9–15

Washington 12

FIGURE 11.4 Grand Jury Size Requirements by State

Source: www.uday ton.edu/~grandjur/stategj/sizegj.htm (accessed March 10, 2011).

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354 Part 4 • The Beginnings of Formal Proceedings

FIGURE 11.5 Portions of Zacarias Moussaoui Indictment

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA

ALEXANDRIA DIVISION

UNITED STATES OF AMERICA ) CRIMINAL NO: )

-v- ) Conspiracy to Commit Acts of Terrorism ) Transcending National Boundaries

ZACARIAS MOUSSAOUI, ) (18 U.S.C. §§ 2332b(a)(2) & (c)) a/k/a “Shaqil,” ) (Count One) a/k/a “Abu Khalid al Sahrawi,” )

) Conspiracy to Commit Aircraft Piracy ) (49 U.S.C. §§ 46502(a)(1)(A) and (a)(2)(B))

Defendant. ) (Count Two) ) ) Conspiracy to Destroy Aircraft ) (18 U.S.C. §§ 32(a)(7) & 34) ) (Count Three) ) ) Conspiracy to Use Weapons of Mass Destruction ) (18 U.S.C. § 2332a(a)) ) (Count Four) ) ) Conspiracy to Murder United States Employees ) (18 U.S.C. §§ 1114 & 1117) ) (Count Five) ) ) Conspiracy to Destroy Property ) (18 U.S.C. §§ 844(f), (i), (n)) ) (Count Six)

VOTING REQUIREMENTS Grand jury voting requirements also vary by state. The most common voting requirement is that 12 grand jury members must agree on an indictment. However, one state, Virginia, requires only four votes for issuance of a true bill, which is the endorsement made by a grand jury when it finds sufficient evidence to warrant a criminal charge. Texas requires a vote of 9 out of 12.

As with a petit jury (i.e., that used in criminal trials), a grand jury is headed by a foreperson, who is charged with, among other duties, signing the indictment and keeping track of the votes of each member. Figure 11.5 presents portions of the indictment against Zacarias Moussaoui, one of the terrorists involved in the 9/11 attacks.

SELECTION OF MEMBERS People are selected for a grand jury in the same way they are selected for an ordinary trial (i.e., petit) jury: They are subpoenaed. In some states, grand jury members are selected from a list of eligible voters. In others, they are selected from a list of licensed drivers. Still other states select grand jury members from a list of tax returns, telephone directories, and so on. Most people do not get the opportunity to serve on a grand jury because grand juries are not convened that frequently.

The grand jury selection process usually involves two stages. First, a list of potential grand jury members is compiled by any of the methods (or others) just described. This list

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DECEMBER 2001 TERM - AT ALEXANDRIA

INDICTMENT

THE GRAND JURY CHARGES THAT:

COUNT TWO (Conspiracy to Commit Aircraft Piracy)

1. The allegations contained in Count One are repeated. 2. From in or about 1989 until the date of the filing of this Indictment, in the Eastern

District of Virginia, the Southern District of New York, and elsewhere, the defendant, ZACARIAS MOUSSAOUI, a/k/a “Shaqil,” a/k/a “Abu Khalid al Sahrawi,” and other members and associates of al Qaeda and others known and unknown to the Grand Jury, unlawfully, willfully and knowingly combined, conspired, confederated and agreed to commit aircraft piracy, by seizing and exercising control of aircraft in the special aircraft jurisdiction of the United States by force, violence, threat of force and violence, and intimidation, and with wrongful intent, with the result that thou- sands of people died on September 11, 2001.

Overt Acts

3. In furtherance of the conspiracy, and to effect its illegal objects, the defendant, and others known and unknown to the Grand Jury, committed the overt acts set forth in Count One of this Indictment, which are fully incorporated by reference.

(In violation of Title 49, United States Code, Sections 46502(a)(1)(A) and (a)(2)(B).)

COUNT THREE (Conspiracy to Destroy Aircraft)

1. The allegations contained in Count One are repeated. 2. From in or about 1989 until the date of the filing of this Indictment, in the Eastern

District of Virginia, the Southern District of New York, and elsewhere, the defen- dant, ZACARIAS MOUSSAOUI, a/k/a “Shaqil,” a/k/a “Abu Khalid al Sahrawi,” and other members and associates of al Qaeda and others known and unknown to the Grand Jury, unlawfully, willfully and knowingly combined, conspired, confed- erated and agreed to willfully destroy and wreck aircraft in the special aircraft ju- risdiction of the United States, and to willfully perform acts of violence against and incapacitate individuals on such aircraft, so as likely to endanger the safety of such aircraft, resulting in the deaths of thousands of persons on September 11, 2001.

Overt Acts

(In violation of Title 18, United States Code, Sections 32(a)(7) and 34.)

COUNT FOUR (Conspiracy to Use Weapons of Mass Destruction)

1. The allegations contained in Count One are repeated. 2. From in or about 1989 until the date of the filing of this Indictment, in the Eastern

District of Virginia, the Southern District of New York, and elsewhere, the defen- dant, ZACARIAS MOUSSAOUI, a/k/a “Shaqil,” a/k/a “Abu Khalid al Sahrawi,”

Figure 11.5 continued

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Rose v. Mitchell (443 U.S. 545 [1979])

of grand jury members is known as the venire. Next, people are selected from the list to serve on the grand jury. At both stages, constitutional complications can arise.

First, special steps need to be taken to ensure that the list of potential grand jurors, like that for a typical petit jury, is fair and impartial. In particular, the defendant can raise constitutional challenges to the grand jury selection process if it is not fair and impartial. One such challenge is based on the equal protection clause. This requires showing that there is a significant disparity between a group’s representation in the community and its representation on the grand jury (see Casteneda v. Partida, 430 U.S. 482 [1977]).

Another constitutional challenge against the composition of the grand jury pool stems from the fair cross-section requirement announced in Taylor v. Louisiana (419 U.S. 522 [1975]). There, the Court held that “systematic exclusion” of a “large distinct group” from the pool from which the (petit) jury is chosen violates the Sixth Amendment. The same logic carries over to the grand jury. If, for example, a grand jury consists of all white members and 40 percent of the community is black, the fair cross-section requirement will have been violated. By contrast, if the grand jury does not contain a snake handler, a militant feminist, a rabbi, or some such specific type of individual, the fair cross-section requirement will not have been violated because these and other individuals do not constitute large, distinct groups.

As for the selection of grand jury members from the pool, similar constitutional concerns can be raised. If, for instance, the grand jury pool is representative of a fair cross-section of the community, it is still possible that people could be excluded from the jury on a systematic basis. In Rose v. Mitchell (443 U.S. 545 [1979]), the Court held that the “right to equal protection of the laws [is] denied when [the defendant] is indicted from a grand jury from which members of a racial group purposefully have been excluded” (p. 556). The final composition of the grand jury can also be challenged on due process grounds (see Beck v. Washington, 369 U.S. 541 [1962]).

Secrecy of Grand Jury Proceedings

Grand jury proceedings are intensely secret. In United States v. Rose (215 F.2d 617 [1954]), the Third Circuit Court of Appeals announced several reasons for this:

(1) to prevent the escape of those whose indictment may be contemplated; (2) to insure the utmost freedom to the grand jury in its deliberations, and to

and other members and associates of al Qaeda and others known and unknown to the Grand Jury, unlawfully, willfully and knowingly combined, conspired, confed- erated and agreed to use weapons of mass destruction, namely, airplanes intended for use as missiles, bombs, and similar devices, without lawful authority against persons within the United States, with the results of such use affecting interstate and foreign commerce, and against property that was owned, leased and used by the United States and by departments and agencies of the United States, with the result that thousands of people died on September 11, 2001.

Overt Acts

(In violation of Title 18, United States Code, Section 2332a(a).)

Source: http://www.usdoj.gov/ag/moussaouiindictment.htm (accessed February 16, 2011).

Taylor v. Louisiana (419 U.S. 522 [1975])

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Butterworth v. Smith (494 U.S. 624 [1990])

8 Ibid.

prevent persons subject to indictment or their friends from importuning the grand jurors; (3) to prevent subornation of perjury or tampering with the witnesses who may testify before the grand jury and later appear at the trial of those indicted by it; (4) to encourage free and untrammeled disclosures by persons who have information with respect to the commission of crimes; [and] (5) to protect the innocent accused who is exonerated from disclosure of the fact that he has been under investigation, and from the expense of standing trial where there was no probability of guilt. (pp. 628–629)

Notwithstanding these concerns, there are two categories of case law concerning grand jury secrecy: (1) cases addressing whether grand jury witness testimony should be supplied to the defense and (2) cases addressing the extent to which grand jury witnesses can share their testimony with other parties, such as other government officials.

DISCLOSURE OF WITNESS TESTIMONY TO THE DEFENSE According to the Federal Rules of Criminal Procedure, grand jury proceedings can be shared with the defense when the defendant makes “a showing that grounds may exist for a motion to dismiss the indict- ment because of matters occurring before the grand jury.”8 This type of disclosure is exceedingly rare and generally limited to situations in which there is evidence that prosecutorial misconduct occurred before the grand jury proceedings commenced.

DISCLOSURE OF WITNESS TESTIMONY TO OTHER PARTIES In Butterworth v. Smith (494 U.S. 624 [1990]), the Supreme Court declared that the First Amendment may provide an exception to the grand jury secrecy requirement. In that case, the Court held that a Florida statute that prohibited grand jury witnesses from recounting their own testimony violated freedom of speech.

Butterworth dealt with a defendant who wanted to share his testimony with third parties. However, many more cases deal with the issue of whether other third parties (i.e., besides the defense) should be able to access the records of grand jury proceedings. One such case is Douglas Oil Co. of California v. Petrol Stops Northwest (441 U.S. 211 [1979]). In that case, the Supreme Court held that parties seeking access to grand jury records “must show that the material they seek is needed to avoid a possible injustice to another judicial proceeding, that the need for disclosure is greater than the need for continued secrecy, and that their request is structured to cover only material so needed” (p. 222).

A third party that has traditionally been given greater latitude in terms of access to grand jury proceedings is the government. In fact, the Federal Rules of Criminal Procedure provide that no showing of “particularized need” is necessary in order to disclose infor- mation to other government attorneys who are assisting in prosecution.9 However, when disclosure is sought by government officials who are not assisting in the prosecution, the Supreme Court has held that a showing of need does have to be made (see United States v. Sells Engineering, Inc., 463 U.S. 418 [1983]).

Rights of Witnesses Testifying before Grand Juries

Grand juries rely heavily on witness testimony. However, the rights afforded to grand jury witnesses differ significantly from those afforded to witnesses in other settings (e.g., at trial). Also, the rights afforded to the individuals targeted by grand jury investigations differ from those afforded to criminal defendants.

9 Ibid.

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United States v. Mandujano (425 U.S. 564 [1976])

The cases in this area revolve around three issues: (1) the right of the individual targeted by a grand jury investigation to testify, (2) whether grand jury witnesses are required to be advised of their right not to testify, and (3) the right to counsel as applied in grand jury proceedings.

RIGHT TO TESTIFY It is well known that the defendant in a criminal trial has a constitu- tional right to testify or not testify in his or her own defense. In contrast, someone who is the target of a grand jury investigation usually does not enjoy the right to testify. Indeed, several states do not even grant the target of a grand jury investigation the right to be present. This restriction is justified on the same secrecy grounds discussed earlier. Also, since many grand jury proceedings are investigative, there may not be a specific target until the proceedings have reached a close. In such a situation, it would be cumbersome to allow all potential targets to be present in order to give testimony in their defense.

BEING ADVISED OF THE RIGHT NOT TO TESTIFY When witnesses appear before grand juries, they enjoy the Fifth Amendment’s privilege against self-incrimination. This is no different than in a criminal trial. However, a question has arisen in the courts over whether grand jury witnesses must be told that they can remain silent. In other words, the courts have grappled with whether the Miranda warnings should apply in the grand jury context.

As noted earlier in this book, the Miranda warnings are only required during custodial interrogation. Therefore, the following question must be asked: Are grand jury proceedings akin to custodial interrogations? At least one decision suggests that Miranda does not apply in the grand jury context because the proceedings are not as “inherently coercive” as traditional custodial interrogations (e.g., Gollaher v. United States, 419 F.2d 520 [9th Cir. 1969]). However, some states require by law that the targets of grand jury investigations, as well as grand jury witnesses, be advised of their right not to testify. The Supreme Court has yet to rule on this issue.

RIGHT TO COUNSEL Should grand jury witnesses and the targets of grand jury investigations be provided with counsel? The Supreme Court has answered no to this question in at least two cases: In re Groban’s Petition (352 U.S. 330 [1957]) and United States v. Mandujano (425 U.S. 564 [1976]). A person who has already been charged may have a right to counsel before a grand jury proceeding, but such an individual is rarely the target of such a proceeding (see, e.g., Kirby v. Illinois, 406 U.S. 682 [1972]). The typi- cal grand jury witness is someone called upon to shed light on a particular case. Such witnesses do not enjoy the right to counsel in grand jury proceedings, but they can of course assert Fifth Amendment protection and refuse to incriminate themselves. As we will see shortly, though, the grand jury may offer a grant of immunity in exchange for a witness’s testimony.

The Supreme Court has stated that grand jury proceedings take place before the initiation of adversarial criminal proceedings and, as such, are outside the scope of the Sixth Amendment’s right to counsel. There are also several additional reasons for not allowing counsel to be present during grand jury proceedings: (1) the investigation could be delayed if the witness repeatedly confers with his or her attorney; (2) the investigation could be disrupted if the witness raises objections and arguments; and, of course, (3) secrecy could be compromised.

Investigative Powers of the Grand Jury

One of the main duties of a grand jury is to investigate alleged wrongdoing in order to determine whether an indictment should be issued. Because of this function, a grand

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Hale v. Henkel (201 U.S. 43 [1906])

United States v. Calandra (414 U.S. 338 [1974])

jury has a great deal of investigative power. For example, as decided in United States v. Calandra (414 U.S. 338 [1974]), a grand jury “may compel the production of evidence or the testimony of witnesses as it considers appropriate, and its operation generally is unrestrained by the technical procedural and evidentiary rules governing the conduct of criminal trials” (p. 343). In this vein, a grand jury can subpoena witnesses and evidence. However, it can also extend grants of immunity to certain individuals in exchange for their testimony, and it can find people in contempt for failing to cooperate with an investigation.

SUBPOENAS Two types of subpoenas are available to grand juries: (1) a subpoena ad testificandum and (2) a subpoena duces tecum. The former compels a witness to appear before the grand jury, and the latter compels the production of tangible evidence (e.g., a suspected murder weapon). The power of the grand jury to utilize both of these mechanisms is virtually unrestricted; however, there have been a few constitutional objections to their use.

First, some have argued that a subpoena to appear before the grand jury amounts to a seizure within the meaning of the Fourth Amendment. The Supreme Court acknowledged in United States v. Dioniso (410 U.S. 1 [1973]) that being forced to appear before a grand jury may be inconvenient but not in comparison to the “historically grounded obligation of every person to appear and give his evidence before the grand jury” (pp. 9–10). Furthermore, Fourth Amendment restrictions on the grand jury’s subpoena power “would assuredly impede its investigation and frustrate the public’s interest in the fair and expeditious administration of the laws” (p. 17).

As for tangible evidence, the Supreme Court has likewise held that a subpoena duces tecum does not amount to a Fourth Amendment seizure. However, according to the Court in Hale v. Henkel (201 U.S. 43 [1906]), such a subpoena must comport with the Fourth Amendment’s particularity requirement. In United States v. Gurule (437 F.2d 239 [10th Cir. 1970]), the Tenth Circuit announced a three-prong test for ensuring that a grand jury subpoena satisfies the Fourth Amendment’s reasonableness requirement: “(1) the subpoena may command only the production of things relevant to the investigation being pursued; (2) specification of things to be produced must be made with reasonable particularity; and (3) production of records covering only a reasonable period of time may be required” (p. 241).

It has already been noted that grand jury witnesses enjoy the Fifth Amendment privilege, but could being forced to appear before a grand jury itself be incriminating? Not surprisingly, people have objected to grand jury subpoenas for this reason. Few, if any, have succeeded, however. Why? Someone who is appearing before a grand jury does not know in advance what questions will be asked and, as such, cannot assert the Fifth Amendment privilege prior to his or her appearance.

GRANTS OF IMMUNITY Even though witnesses appearing before the grand jury enjoy the Fifth Amendment privilege against self-incrimination, the grand jury can get around this. In particular, the grand jury can extend grants of immunity to witnesses in exchange for their testimony. A grant of transactional immunity prohibits future prosecution on the acts for which the witness testifies. In contrast, so-called use and derivative use immunity only bars the use of the witness’s testimony against him or her in the future. If evidence is obtained after the fact, independent of the witness’s testimony before the grand jury, then he or she can be charged (see Kastigar v. United States, 406 U.S. 441 [1972]).

FINDINGS OF CONTEMPT When someone is subpoenaed to appear before the grand jury but does not show up, the jury’s contempt power can be utilized. That is, the grand jury can impose civil and criminal sanctions on the individual. For example, an

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individual who refuses to appear before the grand jury can be jailed until which point he or she agrees to appear. Note that the grand jury’s contempt power is limited to compelling the presence of the witness, not his or her testimony. The witness who does appear can still invoke the Fifth Amendment privilege and not make a statement.

Challenging a Grand Jury Indictment

Restrictions on prosecutors’ charging decisions were discussed earlier in this chapter. Restrictions are also placed on grand jury indictments. That is, it is possible to challenge a grand jury indictment on constitutional and similar grounds, including (1) lack of evidence; (2) misconduct by the prosecutor as the adviser of the grand jury; (3) unfair selection of grand jury members; and (4) use of different evidence at trial from that presented to the grand jury. When any of these circumstances exists, a grand jury indictment will be quashed or declared invalid.

There is considerable variation among the states as to what amount of evidence is necessary to secure a valid indictment. Some states hold to the probable cause standard. Others state that the grand jury can only issue an indictment when all the evidence before it would, if unexplained, warrant a conviction at trial. In Utah, an indictment can only be issued on clear and convincing evidence that a crime was committed and that the person charged committed it. In either case, a grand jury indictment can be quashed if the evidence relied on to obtain the indictment is insufficient. Also, if the evidence used to obtain an indictment is obtained in an unconstitutional fashion, the indictment can be quashed by essentially invoking the exclusionary rule.

Flagrant prosecutorial misconduct can also lead to an indictment being quashed. If, for instance, the prosecutor fails to supply the grand jury with exculpatory evidence, a subsequent indictment may be quashed but only if such misconduct violates existing law. There is, surprisingly, very little existing case law in this area. Indeed, the Supreme Court held in United States v. Williams (504 U.S. 36 [1992]) that federal courts cannot easily dismiss an indictment because of prosecutorial misconduct. “Because the grand jury is an institution separate from the courts, over whose functioning the courts do not preside, we think it clear that, as a general matter at least, no such ‘supervisory’ judicial authority exists” (p. 47).

While the courts have been hesitant to quash indictments based on insufficient evidence and prosecutorial misconduct, discrimination in the selection of grand jury members is taken very seriously. As indicated earlier in this chapter, the composition of the grand jury must comply with the due process and equal protection requirements. When it does not, subsequent indictments can be quashed. The Court noted in United States v. Mechanik (475 U.S. 66 [1986]) that “racial discrimination in the selection of grand jurors is so pernicious and other remedies so impractical, that the remedy of automatic reversal [may be] necessary as a prophylactic means of deterring grand jury discrimination in the future” (p. 70).

DECISION-MAKING EXERCISE 11.7

Grand Jury Investigations

Assume that the grand jury is investigating a major case of corporate fraud. Assume further that the grand jury issues a subpoena duces tecum, calling for “all understandings, contracts or correspondence between the Fabulous Widgets Company and all of its business partners, as well as all reports

made and accounts rendered by such companies from the date of the organization of the Fabulous Widgets Company, as well as all letters received by that company since its organiza- tion from all of its business partners.” Can this subpoena be considered sufficiently particular?

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Gideon v. Wainwright (372 U.S. 335 [1963])

Finally, if the prosecutor presents evidence at trial that departs significantly from that relied on by the grand jury for the purpose of issuing an indictment, sanctions will be imposed. If this variance between the trial evidence and the grand jury evidence is minimal, the indictment will probably not be quashed. Interpreted differently, if the evidence presented by the prosecutor to secure an indictment is “in no way essential to the offense on which the jury convicted,” the indictment will probably not be quashed (see United States v. Miller, 471 U.S. 130 [1985]).

THE DEFENSE ATTORNEY

The Sixth Amendment to the U.S. Constitution provides “in all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense.” This right was applied to the states in the landmark decision of Gideon v. Wainwright (372 U.S. 335 [1963]). While on its face, this portion of the Sixth Amendment seems straightforward, it has actually given rise to two important questions: (1) What constitutes a criminal prosecution? and (2) What does assistance of counsel mean?

Answers to these two questions are provided in the subsections that follow. The right to counsel as applied at other stages of the criminal process and waiver of counsel and the right to counsel of one’s own choice are also addressed.

The Right to Counsel in a Criminal Prosecution

DUE PROCESS ORIGINS Prior to Gideon, the right to counsel did not exist for all individ- uals. Usually, counsel was provided only for defendants who could afford it. There were occasions prior to the 1960s, however, in which counsel was provided to criminal defendants who could not afford it. For example, the constitutional right of an indigent defendant to be represented by counsel was first announced in Powell v. Alabama (287 U.S. 45 [1932]). In that case, the Supreme Court reversed the convictions of several indigent defendants who were not represented by counsel at trial. Significantly, though, the Court based its decision on the Fifth Amendment’s due process clause, not the Sixth Amendment. In the Court’s words:

The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crimes, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to

DECISION-MAKING EXERCISE 11.8

Deciding on Variance

A grand jury returned an indictment against two women, charging them both with conspiracy to commit murder. Typically, a criminal conspiracy exists when two or more persons agree to commit a crime and then commit some sort of overt act in furtherance of that agreement (e.g., People v. Cockrell, 63 Cal. 2d 779). The grand jury was presented with a recorded telephone call between the two women, in which

they agreed to murder their husbands. The grand jury was not presented with evidence that the women bought hand- guns for themselves. That evidence was introduced by the prosecutor at trial, however. The women were convicted and are now appealing their convictions, claiming that there was a variance between their indictment and the prosecutor’s case. Will they succeed?

Powell v. Alabama (287 U.S. 45 [1932])

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the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he may have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of con- viction because he does not know how to establish his innocence. (pp. 68–69)

However, the right to counsel announced in Powell was not without limitations. It applied only to “capital case[s], where the defendant is unable to employ counsel, and is incapable adequately of making his own defense because of ignorance, feeble- mindedness, illiteracy, or the like” (p. 71).

THE CONTEMPORARY SIXTH AMENDMENT APPROACH In Johnson v. Zerbst (304 U.S. 458 [1938]), the Court recognized the Sixth Amendment right to counsel in all federal prosecutions, stating that the Sixth Amendment “embodies a realistic recognition of the obvious truth that the average defendant does not have the professional legal skill to protect himself” (pp. 462–463).

But the Sixth Amendment’s right to counsel was still not extended to the states. In Johnson, the Court refused to apply its decision to the states, and this holding was reaffirmed a few years later in the case of Betts v. Brady (316 U.S. 455 [1942]). There, the Court held that “[t]he Due Process Clause of the Fourteenth Amendment does not incorporate, as such, the specific guarantees found in the Sixth Amendment” (pp. 461–462). It would not be until the 1963 decision in Gideon v. Wainwright that the Sixth Amendment right to counsel became incorporated. In that case, the Court recognized that “lawyers in criminal courts are necessities, not luxuries” (p. 344).

Gideon dealt with a felony, which led the Supreme Court to conclude that the Sixth Amendment right to counsel applies only in felony proceedings. However, in Argersinger v. Hamlin (407 U.S. 25 [1972]), the Court held that the right to counsel applies in misdemeanor cases, also. According to the Court, “The requirement of counsel may well be necessary for a fair trial even in petty-offense prosecution. We are by no means convinced that legal and constitutional questions involved in a case that actually leads to imprisonment even for a brief period are any less complex than when a person can be sent off for six months or more” (p. 33).

This decision was then clarified in Scott v. Illinois (440 U.S. 367 [1979]), in which the Court held that the right to counsel does not apply where loss of liberty is merely a possibility. In short, when there is no possibility of confinement, the Sixth Amendment right to counsel does not apply. A twist on the Scott decision was recently handed down in Alabama v. Shelton (535 U.S. 654 [2002]), in which the Court held 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” (p. 654). Shelton differed from Scott because Shelton was placed on probation; Scott was not.

The Right to Counsel at Other Stages of the Criminal Process

Until the Supreme Court’s 1963 decision in Gideon, its cases on the right to counsel had addressed this right primarily in the context of trials. After Gideon, however, the Court began to turn its attention to the right to counsel at other stages of the criminal process. This right can be tied to the Sixth Amendment, but the Court has also defended it (i.e., to the extent it exists) on grounds of self-incrimination, due process, and equal protection.

THE SIXTH AMENDMENT APPROACH In order to determine whether the Sixth Amendment right to counsel applies outside the trial context, the Court once held that a

Johnson v. Zerbst (304 U.S. 458 [1938])

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Kirby v. Illinois (406 U.S. 682 [1972])

critical stage analysis was necessary. In United States v. Wade (388 U.S. 218 [1967]), the Supreme Court announced a two-prong test for determining when counsel is required under the Sixth Amendment: (1) “whether potential substantial prejudice to the defendant’s rights inheres in the particular confrontation;” and (2) whether counsel can “help avoid that prejudice” (p. 227). In support of its decision, the Court stated, “The trial which might determine the accused’s fate may well not be that in the courtroom but that at the pretrial confrontation, with the State aligned against the accused, the witness the sole jury, and the accused unprotected against the overreaching, intentional or unintentional, [influence of the government]” (p. 235).

What, then, was considered a critical stage? The Court stated that the period from arraignment to trial was arguably the most critical period of the proceedings. Preliminary hearings and sentencing hearings were also considered critical stages in the criminal process (see Mempa v. Rhay, 389 U.S. 128 [1967]; Coleman v. Alabama, 399 U.S. 1 [1970]).

In the 1973 decision United States v. Ash (413 U.S. 300 [1973]), the Court abandoned the critical stage analysis and focused instead on whether “trial-like confrontations” necessitate counsel. The Court was unsatisfied with the open-endedness of the critical stage analysis. Trial-like confrontations, according to the Court, were proceedings that confronted the accused with the “intricacies of the law and the advocacy of the public prosecutor” (p. 309). Cases in which this definition was applied include but are not limited to Gerstein v. Pugh (420 U.S. 103 [1975]) and Estelle v. Smith (451 U.S. 454 [1981]). But since this definition is equally vague, the Court abandoned it for a third and final approach to the Sixth Amendment right to counsel outside trial.

In Kirby v. Illinois (406 U.S. 682 [1972]), the Court became even more specific and held, once and for all, that the right to counsel applies not only in criminal prosecutions but also at the “initiation of adversary proceedings.” This means that the Sixth Amendment right to counsel applies not only after indictment, formal charging, and on through sentencing, but also as early on as the initial appearance (Rothgery v. Gillespie County, No. 07-440 [2008]).

THE FIFTH AMENDMENT APPROACH As was already noted in Chapter 8, the right to counsel has also been applied through the Fifth Amendment. In Miranda v. Arizona (384 U.S. 436 [1966]), the Court held that the Fifth Amendment’s privilege against self- incrimination grants suspects the right to counsel during custodial interrogations because of the “inherent coerciveness” of such activities. Furthermore, the right to counsel during custodial interrogations applies before or after commencement of formal adversary proceedings.

THE DUE PROCESS APPROACH The right to counsel also stems from the due process clause of the Fourteenth Amendment, but only in certain circumstances. The Fourteenth Amendment has been used to justify the right to counsel primarily in criminal appeals and probation/parole revocation hearings. For example, in Douglas v. California (372 U.S. 353 [1963], the Court held that the right to counsel extends to convicted indigents for appeals of right (i.e., appeals to which the individual is legally entitled). And in Gagnon v. Scarpelli (411 U.S. 778 [1973]), the Court held that as a matter of due process, indigents are entitled to counsel at probation and parole revocation hearings but only on a case-by-case basis (e.g., whether the complexity of the issues at stake is significant).

In contrast, the right to counsel does not necessarily exist so that indigent convicts can prepare petitions for discretionary appeals (i.e., those that the reviewing court gets to decide it wants to hear) (see Ross v. Moffitt, 417 U.S. 600 [1974]). The Court noted that the government “does not automatically . . . act . . . unfairly by refusing to provide counsel to indigent defendants at every stage of the [appellate process]” (p. 611). Similarly, in Pennsylvania v. Finley (481 U.S. 551 [1987]), the Court announced that the right to

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counsel does not exist so that convicted criminals can prepare habeas corpus petitions. The reason offered by the Court is that “[post-]conviction relief is even further removed from the criminal trial than is discretionary direct review” (pp. 556–557).

Waiver of the Right to Counsel

Though the Sixth Amendment provides for the right to counsel, accused individuals sometimes prefer to represent themselves. Indeed, according to the Supreme Court, criminal defendants have a constitutional right to represent themselves at trial (Faretta v. California, 422 U.S. 806 [1975]). This is known as a pro se defense. In reaching this decision, the Court noted that the Sixth Amendment only guarantees the assistance of counsel, not necessarily representation by counsel:

The language and spirit of the Sixth Amendment contemplate that counsel, like the other defense tools guaranteed by the Amendment, shall be an aid to a willing defendant—not an organ of State interposed between an unwilling defendant and his right to defend himself personally. . . . An unwanted counsel “represents” the defendant only through a tenuous and unaccept- able legal fiction. Unless the accused has acquiesced in such representation, the defense presented is not the defense guaranteed him by the Constitution, for in a very real sense, it is not his defense. (pp. 820–821)

The Court also emphasized in Faretta that the framers viewed the “inestimable worth of free choice” as more important than the right to counsel. Also, “[t]o force a lawyer on a defendant can only lead [the defendant] to believe that the law contrives against him” (p. 834).

Not every defendant who wishes to proceed without counsel is allowed to do so, however. In Johnson v. Zerbst (304 U.S. 458 [1938]), the Supreme Court stated that a defendant may only waive counsel if the waiver is “competent and intelligent.” According to the Court in Carnley v. Cochran (369 U.S. 506 [1962]), “the record must show, or there must be an allegation and evidence must show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not a waiver” (p. 516). The Court elaborated further in Von Moltke v. Gillies (332 U.S. 708 [1948]):

To be valid such waiver must be made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter. A judge can make certain that an accused’s professed waiver of counsel is understandingly and wisely made only from a penetrating and comprehensive examination of all the circumstances. (p. 724)

DECISION-MAKING EXERCISE 11.9

Right to Counsel in the Pretrial Phase

A man was arrested without a warrant when a police officer caught him robbing the First Street branch of American Bank. Four hours later, the man was brought before a judge for a probable cause hearing. The judge decided that the officer

had probable cause to arrest. The man was convicted of the crime and sentenced to prison. He is now appealing his conviction, claiming that he should have been given access to counsel at the probable cause hearing. Is he right?

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What constitutes a knowing and intelligent waiver is not always clear. However, in Massey v. Moore (348 U.S. 105 [1954]), the Court offered clarification by stating that “[o]ne might not be insane in the sense of being incapable of standing trial and yet lack the capacity to stand trial without benefit of counsel” (p. 108). But in Godinez v. Moran (509 U.S. 389 [1993]), a case decided some years later, the Court held that a person who is competent to stand trial is also competent to waive counsel at trial and for pleading purposes. This decision all but reversed an earlier decision in which the Court held that competence to stand trial could be interpreted as competence to waive counsel (see Westbrook v. Arizona, 384 U.S. 150 [1966]).

In certain circumstances, while permitting waiver of counsel, the court can require that standby counsel be available to the defendant—that is, an attorney who is standing by in order to assist the accused, if necessary. This was the decision reached in McKaskle v. Wiggins (465 U.S. 168 [1984]), in which the Court held that a judge can appoint standby counsel “to relieve the judge of the need to explain and enforce basic rules of courtroom protocol or to assist the defendant in overcoming routine obstacles that stand in the way of the defendant’s achievement of his own clearly indicated goals” (p. 184). When waiver of counsel is knowing and intelligent, a judge’s decision to appoint standby counsel will not be unconstitutional as long as (1) the defendant retains control over the case and (2) the jury understands that the defendant represents himself or herself.

In 2004, the Supreme Court decided that waiver of the right to counsel is one that the defendant takes, potentially, at his or her own peril. In Iowa v. Tovar (541 U.S. 77 [2004]), the Court decided that a trial court was not required to warn the accused that waiving the right to counsel at a plea hearing involves two risks: (1) the possibility that valid defenses will be overlooked and (2) the accused will be deprived of advice as to whether a guilty plea is warranted. At the same time, though, the Constitution does not prohibit a court from insisting on representation of counsel for criminal defendants who are compe- tent to stand trial but who also suffer from serious mental illness that would compromise their ability to put on an effective defense (Indiana v. Edwards, 554 U.S. 164 [2008]).

Indigent versus Nonindigent Defendants’ Right to Counsel of Their Choice

Clearly, the defendant who is not indigent can hire counsel of his or her choosing. What’s more, the wealthier the defendant, the better counsel he or she can afford. Unfortunately, the indigent defendant does not have such a choice. The Sixth Amendment right to counsel does not guarantee the indigent defendant permission to choose counsel; rather, counsel will be provided. Usually, counsel will be a public defender. If, however, an indigent can show good cause that the attorney appointed to represent him or her is not doing so adequately, another attorney can be appointed. What constitutes inadequate representation is discussed in the next section.

Surprisingly, there are situations in which defendants, if they can afford represen- tation, cannot hire counsel of their choice. If, for example, the defendant’s choice of an attorney poses serious conflict-of-interest problems, the defendant may be forced to hire another attorney (e.g., Wheat v. United States, 486 U.S. 153 [1988]). Or if the defendant’s attorney is not qualified to practice law, then another attorney may be required (e.g., cf. Leis v. Flynt, 439 U.S. 438 [1979]). And somewhat controversially, if a defendant’s assets are frozen pursuant to a civil forfeiture statute and he or she cannot afford counsel of his or her choosing, then a less expensive attorney may be required or a public defender may be appointed (see Caplin v. Drysdale v. United States, 491 U.S. 617 [1989]).

On the other hand, if a defendant with means has his or her eye on a particular attorney who is qualified to practice law and does not have any conflicts of interest, the

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defendant must be able to hire the attorney. If a judge wrongfully prohibits the defen- dant from hiring the attorney of his or her choice, the defendant’s ensuing conviction must be overturned (United States v. Gonzalez-Lopez, 548 U.S. 140 [2006]).

An issue related to counsel of one’s choice is whether indigent defendants can retain expert witnesses of their own choosing. In Ake v. Oklahoma (470 U.S. 68 [1985]), the Supreme Court held that an indigent defendant enjoys a constitutional right to an expert witness when his or her sanity is at issue. However, the Court limited its holding to provide for only one expert and one who is state employed. States vary in their rules concerning expert witnesses for indigent defendants. Often there are price caps that limit how much an indigent defendant’s expert can be paid. At a point, it becomes necessary to assume that the state’s experts (e.g., ballistics experts) present objective and accurate testimony that is not prejudicial to the accused.

Effective Assistance of Counsel

If the Sixth Amendment’s right to counsel provision was extended to indigent defendants with a blind eye, then some defendants would be convicted and others acquitted because of varying levels of competence among attorneys. All attorneys are not the same. Some, while authorized to practice law, prove to be totally ineffective in their duties. As such, the courts have grappled with what constitutes effective assistance of counsel.

WHEN THE RIGHT APPLIES The Sixth Amendment does not explicitly state that effective assistance of counsel is required, but the Supreme Court has interpreted it in this way. However, the right to effective assistance only applies when the right to counsel applies. For example, the Supreme Court has held that a defense attorney’s failure to file a timely discretionary appeal is not ineffective because the right to counsel does not extend to such appeals (Wainwright v. Torna, 455 U.S. 586 [1982]). Only when counsel is required can an ineffective assistance claim be made out.

It is important to realize that claims of ineffective assistance can be filed against both retained and appointed counsel. For a time, the Supreme Court held that a nonindigent defendant who retained his or her own attorney was bound by that attorney’s representa- tion, for better or worse, because there was no state action responsible for the ineffective representation. However, in Cuyler v. Sullivan (446 U.S. 335 [1980]), the Court held that privately retained counsel can be ineffective in the same way a public defender can:

The vital guarantee of the Sixth Amendment would stand for little if the often uninformed decision to retain a particular lawyer could reduce or forfeit the defendant’s entitlement to constitutional protection. Since the State’s conduct of a criminal trial itself implicates the State in the defendant’s conviction, we see no basis for drawing a distinction between retained and appointed counsel that would deny equal justice to defendants who must choose their own lawyers. (p. 344)

THE MEANING OF EFFECTIVE ASSISTANCE So, what constitutes effective assistance of counsel? The lower courts are somewhat divided in terms of how to answer this ques- tion, so it is necessary to focus on the Supreme Court’s standard for deciding whether defense counsel’s assistance is or is not effective. Before getting to the cases, however, Figure 11.6 reprints portions of the Code of Conduct for Federal Public Defender Employees, published by the Administrative Office of the U.S. Courts. Public defenders are defense attorneys for indigent individuals, but the Code is informative nevertheless.

In the first case, McMann v. Richardson (397 U.S. 759 [1970]), the Court held that counsel is effective when his or her legal advice is “within the range of competence

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FIGURE 11.6 Code of Conduct for Federal Public Defender Employees

B. Code of Conduct for Federal Public Defender Employees

CANON 1: A FEDERAL PUBLIC DEFENDER EMPLOYEE SHOULD UPHOLD THE INTEGRITY AND INDEPENDENCE OF THE OFFICE

An independent and honorable defender system is indispensable to justice in our society. A defender employee should personally observe high standards of conduct so that the integrity and independence of the office are preserved and so that the defender office reflects a devotion to serving the public defender’s clients and the principle of equal justice under law. Defender employees should require adherence to such standards by personnel subject to their direction and control. The provisions of this code should be construed and applied to further these objectives. The standards of this code shall not affect or preclude other more stringent standards required by law, by applicable codes of professional responsibility, by court order, or by the federal public defender.

CANON 2: A FEDERAL PUBLIC DEFENDER EMPLOYEE SHOULD AVOID IMPROPRIETY AND THE APPEARANCE OF IMPROPRIETY IN ALL ACTIVITIES

A defender employee should not engage in any activities that would put into question the propriety of the defender employee’s conduct in carrying out the duties of the office. A defender employee should not use public office for private gain.

CANON 3: A FEDERAL PUBLIC DEFENDER EMPLOYEE SHOULD ADHERE TO APPROPRIATE STANDARDS IN PERFORMING THE DUTIES OF THE OFFICE

In performing the duties prescribed by law, by resolution of the Judicial Conference of the United States, by court order, or by the federal public defender, the following standards apply:

A. A defender employee should respect and comply with the law and these canons. A defender employee should report to the appropriate supervising authority any attempt to induce the defender employee to violate these canons.

Note: A number of criminal statutes of general applicability govern defender employees’ performance of official duties. These include:

18 U.S.C. § 201 (bribery of public officials and witnesses);

18 U.S.C. § 211 (acceptance or solicitation to obtain appointive public office);

18 U.S.C. § 285 (taking or using papers relating to government claims);

18 U.S.C. § 287 (false, fictitious, or fraudulent claims against the government);

18 U.S.C. § 508 (counterfeiting or forging transportation requests);

18 U.S.C. § 641 (embezzlement or conversion of government money, property, or records);

18 U.S.C. § 643 (failing to account for public money);

18 U.S.C. § 798 and 50 U.S.C. § 783 (disclosure of classified information);

18 U.S.C. § 1001 (fraud or false statements in a government matter);

18 U.S.C. § 1719 (misuse of franking privilege);

Figure 11.6 continued

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18 U.S.C. § 2071 (concealing, removing, or mutilating a public record);

31 U.S.C. § 1344 (misuse of government vehicle);

31 U.S.C. § 3729 (false claims against the government).

This is not a comprehensive listing but sets forth some of the more significant provisions with which defender employees should be familiar.

B. A defender employee should be faithful to professional standards and maintain competence in the defender employee’s profession.

C. A defender employee should be patient, dignified, respectful, and courteous to all persons with whom the defender employee deals in an official capacity, and should require similar conduct of personnel subject to the defender employee’s direction and control. A defender employee should diligently discharge the responsibilities of the office in a nondiscriminatory fashion.

D. A defender employee should not solicit or accept a payment of money or anything of value from a client, except that a defender employee may accept an appropriate memento or token that is neither money nor of commercial value. A defender employee should never disclose any confidential communications from a client, or any other confidential information received in the course of official duties, except as authorized by law. A former defender employee should observe the same restrictions on disclosure of confidential information that apply to a current defender employee.

E. A defender employee should not engage in nepotism prohibited by law.

Note: See also 5 U.S.C. § 3110 (employment of relatives); 28 U.S.C. § 458 (employment of judges’ relatives).

F. Conflicts of Interest.

(1) In providing legal representation to clients, a public defender should observe applicable rules of professional conduct governing the disclosure and avoidance of conflicts of interest. . . .

CANON 4: A FEDERAL PUBLIC DEFENDER EMPLOYEE MAY ENGAGE IN ACTIVITIES TO IMPROVE THE LAW, THE LEGAL SYSTEM, AND THE ADMINISTRATION OF JUSTICE

A defender employee, subject to the proper performance of official duties, may engage in the law-related activities enumerated below.

A. A defender employee may speak, write, lecture, teach, and participate in other activities concerning defender services, the legal system, and the administration of justice.

B. A defender employee may serve as a member, officer, or director of an organization or governmental agency devoted to the improvement of the law, the legal system, or the administration of justice. A defender employee may assist such an organization in raising funds and may participate in the management and investment of such funds. A defender employee may make recommendations to public and private fund-granting agencies on projects and programs concerning the law, the legal profession, and the administration of justice. A defender employee may solicit funds for law-related activities, subject to the following limitations:

(1) A defender employee should not use or permit the use of the prestige of the office in the solicitation of funds. (2) A defender employee should not solicit subordinates to contribute funds to any such activity but may provide information to them about a general fund-raising campaign.

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(3) A defender employee should not solicit or accept funds from lawyers, clients, or other persons likely to have official business with the federal public defender office, except as an incident to a general fund-raising activity.

C. A defender employee may promote the development of professional organizations and foster the interchange of information and experience with others in the profession. A defender employee may make himself or herself available to the public at large for speaking engagements and public appearances designed to enhance the public’s knowledge of the operation of defender services and the criminal justice system.

CANON 5: A FEDERAL PUBLIC DEFENDER EMPLOYEE SHOULD REGULATE EXTRA-OFFICIAL ACTIVITIES TO MINIMIZE THE RISK OF CONFLICT WITH OFFICIAL DUTIES

A. Avocational Activities. A defender employee may write, lecture, teach, and speak on subjects unrelated to the profession, and may engage in the arts, sports, and other social and recreational activities, if such avocational activities do not detract from the dignity of the office, interfere with the performance of official duties, or adversely reflect on the public defender’s role as an advocate. A defender employee may solicit funds for avocational activities, subject to the limitations set forth in canon 4B.

B. Civic and Charitable Activities. A defender employee may participate in civic and charitable activities that do not detract from the dignity of the office, interfere with the performance of official duties, or adversely reflect on the public defender’s role as an advocate. A defender employee may serve as an officer, director, trustee or advisor of an educational, religious, charitable, fraternal, or civic organization, and may solicit funds for any such organization subject to the limitations set forth in canon 4B.

C. Financial Activities.

(1) A defender employee should refrain from financial and business dealings that tend to detract from the dignity of the office or interfere with the performance of official duties. . . .

CANON 6: A FEDERAL PUBLIC DEFENDER EMPLOYEE SHOULD REGULARLY FILE REPORTS OF COMPENSATION RECEIVED FOR ALL EXTRA-OFFICIAL ACTIVITIES

A defender employee may receive compensation and reimbursement of expenses for outside activities provided that receipt of such compensation or reimbursement is not prohibited or restricted by this code, the Ethics Reform Act, and other applicable law, and provided that the source or amount of such payments does not influence or give the appearance of influencing the defender employee in the performance of official duties or otherwise give the appearance of impropriety. Expense reimbursement should be limited to the actual cost of travel, food, and lodging reasonably incurred by a defender employee and, where appropriate to the occasion, by the defender employee’s spouse or relative. Any payment in excess of such an amount is compensation. A defender employee should make and file reports of compensation and reimburse- ment for outside activities to the extent prescribed by the Ethics Reform Act, other applicable law, or the Judicial Conference of the United States.

Notwithstanding the above, a defender employee (other than a defender employee serving without compensation) should not receive any salary, or any supplementation of salary, as compensation for official government services from any source other than the United States.

Figure 11.6 continued

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Note: See 5 U.S.C. App. § § 101 to 111 (Ethics Reform Act financial disclosure provisions). See also 5 U.S.C. App. § § 501 to 505 (outside earned income and employment).

CANON 7: A FEDERAL PUBLIC DEFENDER EMPLOYEE SHOULD REFRAIN FROM INAPPROPRIATE POLITICAL ACTIVITY

A. A defender employee should not be a candidate for or hold partisan elective office and should not solicit partisan political contributions. A defender employee should not engage in any political activity while on duty or in the defender employee’s workplace and may not utilize any federal resources in any such activity. Political activity includes, but is not limited to, displaying campaign literature, badges, stickers, signs or other items of political advertising on behalf of any party, political committee, or candidate for political office and soliciting signatures for political candidacy or membership in a political party.

B. A defender employee may engage in political activity not otherwise prohibited, pro- vided that such activity does not detract from the dignity of the office or interfere with the proper performance of official duties. A defender employee who participates in political activity should not use his or her position or title in connection with such activity.

Note: See also 18 U.S.C. Chapter 29 (elections and political activities).

Source: From Code of Conduct for Federal Public Defender Employees. Available Online: http://host4.us-

courts.gov/guide/vol2/ch2b.html (accessed February 16, 2011).

demanded of attorneys in criminal cases” (p. 771). This is something of a vague standard, so the Court created a new test in Strickland v. Washington (466 U.S. 668 [1984]). There, the Court held that a two-prong test must be applied in order to determine whether counsel is ineffective:

First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is unreliable. (p. 687)

The two prongs announced in this case are now known as the performance prong and the prejudice prong. With regard to the former, “The proper measure of attorney performance remains simply reasonableness under prevailing professional norms” (p. 688). Defense counsel’s performance will be considered adequate if he or she avoids conflicts of interest, serves as an advocate for the defendant’s case, and brings to bear “such skill and knowledge as will render the trial a reliable adversarial test- ing process” (p. 688). Furthermore, defense counsel “has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary” (p. 691).

For example, in Strickland, the Court stated that “[a]ctual or constructive denial of the assistance of counsel” and “various kinds of state interference with counsel’s assistance” are “legally presumed to result in prejudice” (p. 692). State interference of this sort can occur when the defendant is either denied counsel or provided with counsel too late. Also, if the state blocks counsel’s performance to some degree or other- wise interferes with the attorney/client relationship, an ineffective assistance of counsel claim is likely to succeed.

Strickland v. Washington (466 U.S. 668 [1984])

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DECISION-MAKING EXERCISE 11.10

Effective Assistance of Counsel

A woman has been convicted of check fraud. On appeal, she claims that she was denied access to effective counsel. She argues that her attorney, a young public defender, had never

tried a jury case and did not have enough time to prepare an adequate defense. Will her appeal succeed?

With regard to conflict of interest, this form of ineffective assistance can be mani- fested in several ways. For example, ineffective assistance is likely if the attorney (1) tries to represent more than one defendant in the same trial; (2) has represented one of the prosecution’s witnesses in a previous trial; (3) is being paid by a third party; or (4) is contracted with a publishing company to write the defendant’s story. Numerous other conflict-of-interest scenarios are possible, as well. Recently, in Mickens v. Taylor (535 U.S. 162 [2002]), the Supreme Court considered the question of whether a defense attorney’s conflict of interest violates the defendant’s Sixth Amendment rights. The defendant in this case claimed his conviction should be overturned because the judge should have inquired about the conflict of interest at trial but did not. However, the Supreme Court held that the judge’s failure to do so did not entitle the defendant to an automatic reversal. Instead, the Court held that the defendant had to establish that the potential conflict of interest adversely affected the trial attorney’s performance.

In another case involving the ineffective assistance of counsel, Bell v. Cone (535 U.S. 685 [2002]), the Supreme Court held that defense counsel’s failure to present any mitigating evidence or to make a closing statement at the defendant’s capital sentencing hearing was not ineffective. Among the reasons for the Court’s decision was that the mitigating evidence that was not presented during the sentencing hearing was presented at trial, so the jury did have an opportunity to review it. Likewise, if the defense attorney participates in a plea hearing by speakerphone, rather than in person, it does not mean he or she provides ineffective assistance (Wright v. Van Patten, No. 07-212 [2008]).

In Rompilla v. Beard (545 U.S. 374 [2005]), the Court declared that defense counsel is bound to make reasonable efforts to obtain and review material that it knows the prosecution will probably rely on as part of its case, something the defense attorney did not do. But, contrast Beard with the Court’s decision in Florida v. Nixon (543 U.S. 175 [2004]). There, the defense attorney acknowledged—in open court—his client’s guilt and instead focused his defense on reasons why the defendant’s life should be spared. The evidence was so clearly indicative of the defendant’s guilt, that the Supreme Court did not feel the defense attorney’s strategy was ineffective.

Likewise, in Schriro v. Landrigan (No. 05-1575 [2007]), the Court held that a defense attorney was not ineffective when his client instructed him not to present mitigating evidence during the death penalty sentencing phase. And in Harrington v. Richter (No. 09-587 [2011]), the Court decided that defense counsel was not ineffective when it failed to utilize the testimony of its own blood evidence expert who could have testified to the defendant’s account of the events. Blood evidence was not central to the case, and it was apparent that even the defense attorney questioned the defendant’s account of the crime for which he was on trial. Finally, the Supreme Court held in Premo v. Moore (No. 09-658 [2010]) that defense counsel was not ineffective for failing to seek suppression of the defendant’s unconstitutionally obtained confession.

Even without state interference or conflict of interest, there are countless other means by which counsel can be considered ineffective. Attorneys’ errors can come in several varieties. Generally, though, the defendant must point to a specific error or set of errors, not the overall performance of his or her counsel. If defense counsel makes a specific error and can offer no explanation for the error, then the defendant will have a

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good chance in succeeding with a claim of ineffective assistance of counsel. This chance hinges, however, on the second prong announced in Strickland: prejudice.

Proving defense counsel’s ineffective assistance is not enough to ensure a conviction will be overturned. In addition, the defendant must prove that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different” (Strickland, p. 694). In other words, the burden falls on the defendant to show that the outcome of the case hinged on the ineffective assistance provided by his or her defense attorney. If defense counsel acted ineffectively but such actions did not influence the outcome of the case, then a Strickland claim cannot succeed. The Supreme Court has not elaborated extensively on these issues, but they have been touched on extensively in the lower courts.

THE COURTROOM WORK GROUP

It is fitting at this juncture to point out that prosecutors and defense attorneys do not always work independently of each other. In contrast, most prosecutors and defense attorneys see each other on a regular basis. Moreover, they often appear before the same judges. This leads to a great deal of familiarity among the three parties. Researchers have used the term courtroom work group to describe this relationship. Walker has described the process in this way:

Working together every day, members of the courtroom work group reach a general consensus about how different kinds of cases should be handled. This involves shared understanding about how much cases are “worth.” There are “heavy” cases (that is, serious violent crimes) and “garbage” cases (relatively minor theft). This valuation allows them to move cases along quickly. . . . Conflict between prosecution and defense is the exception rather than the rule. Although in theory we have an adversarial process, in which truth is to be determined through conflict between prosecution and defense, the reality is that an administrative system is in effect, with a high degree of consensus and cooperation. (Federal Rules of Criminal Procedure, Rule 6)

Thus, even though this chapter has treated the prosecution and defense as distinctly separate, in reality this is not the case. Indeed, the general perception is that criminal procedure in the United States is combative and adversarial. On the whole, this is not true, either. It is in the interest of prosecutors and defense attorneys, especially public defenders, to work together, and also with the judge, to speed up the administration of justice. A lengthy, drawn-out adversarial process would contribute to delay.

Summary

1. DESCRIBE THE PROSECUTOR’S ROLE, PROSECUTOR’S DISCRETION, AND THE ISSUES SURROUNDING PROSECUTORIAL MISCONDUCT.

A prosecutor’s decision whether to charge is rarely challenged. Reasons for nonprosecution include a lack of evidence and too much court backlog. However, a prosecutor’s decision not to press charges

can be challenged. On rare occasions, a court can effectively overrule a prosecutor’s decision not to charge someone. Also, a prosecutor’s superior can demand that charges be brought.

Prosecutors’ charging decisions are subject to certain constitutional restrictions. Unfair and selec- tive prosecutions are inappropriate and violate the

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equal protection clause of the Fourteenth Amend- ment. Vindictive prosecutions violate due process. Prosecutors generally enjoy absolute immunity for their charging decisions. Methods of dealing with overzealous prosecutors range from reprimand to disbarment.

2. EXPLAIN THE CONCEPT OF JOINDER AND REASONS FOR IT.

Joinder refers either to (1) bringing several charges against the same individual in the same trial or to (2) bringing charges against multiple defendants in the same trial. Both methods of joinder are generally considered appropriate, but if the crimes (or defen- dants) in question are only tied together because they are similar, separate trials may be warranted. Assuming the court permits joinder, then for separate trials to be held, the defendant must prove that his or her interests will be prejudiced in some fashion by a joint trial.

3. EXPLAIN THE PURPOSE, FUNCTIONS, AND POWERS OF A GRAND JURY.

Approximately one-third of all states and the federal system require that prosecution in felony cases proceed by grand jury indictment. In the remaining states, prosecution can proceed by indictment or information. Grand juries are closely related to prosecutors in terms of their charging decisions. Frequently, the grand jury serves as a means of formal- izing the prosecutor’s decision to charge. A grand jury is useful when the case in question is of great public and/or political significance, when its extensive inves- tigative powers are helpful, when time is of the essence, and when one or more witnesses is hesitant to speak in open court, preferring the secrecy that surrounds grand jury proceedings.

The size of a grand jury varies, depending on location. Typically, the smaller the grand jury, the higher the voting requirement. Grand jury selection pools must be representative in terms of race and gender. That is, a grand jury selection procedure that purposefully discriminates on the basis of race and/or gender will be unconstitutional. Indeed, if the selection procedure systematically excludes an identifiable segment of society, then it is inappropriate. The final grand jury itself does not need to be repre- sentative of the community.

Grand jury proceedings are typically held in secret. Thus, there are significant restrictions on what information from grand jury proceedings can be shared with the defense as well as other parties. There

are several reasons for secrecy: (1) to prevent the escape of possible indictees, (2) to ensure freedom to the grand jury in its deliberations, (3) to prevent tampering with the witnesses who may testify, (4) to encourage persons who have information with respect to the commission of crimes to come forward, and (5) to protect the innocence of those who are ulti- mately exonerated by grand jury investigations.

An individual who is the target of a grand jury investigation does not have the right (1) to appear in front of the grand jury, (2) to have the assistance of counsel during the grand jury’s investigation, (3) to be told he or she is the target of the investigation, or (4) to be reminded that he or she has the right to remain silent. In short, many of the constitutional rights that apply in the context of a criminal trial do not apply during the course of a grand jury investigation.

Grand juries possess extensive investigative powers. They can issue subpoenas ad testificandum, which require witnesses to appear and testify, and subpoenas duces tecum, which compel the production of evidence. Unlike subpoenas to elicit testimony, subpoenas to compel the production of tangible evidence must be sufficiently particular, relevant to the investigation, and not overly burdensome. As part of their investigative powers, grand juries can also grant immunity and hold people in contempt.

Just as there are constraints on prosecutors’ charg- ing decisions, there are restrictions on grand juries’ indictment decisions; however, a grand jury indictment is rarely quashed. Only when there is evidence of serious prosecutorial tampering, discrimination in the composition of the grand jury pool, or variance between the evidence presented during the grand jury investigation and that presented at trial will a grand jury indictment possibly be quashed.

4. OUTLINE THE DEVELOPMENT OF THE RIGHT TO COUNSEL.

Criminal defendants enjoy the Sixth Amendment right to counsel once adversarial criminal proceedings have commenced; this usually means once charges have been filed. Otherwise, when there is no possibility of confine- ment, the right to counsel does not apply. Like many constitutional rights, the right to counsel can be waived, but the court can appoint standby counsel in certain circumstances. Finally, the Supreme Court has inter- preted the right to counsel to mean the right to effective counsel. Counsel is ineffective when specific errors are made that are prejudicial to the defendant’s case.

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5. BE FAMILIAR WITH THE COURTROOM WORKGROUP AND ITS FUNCTIONS.

The courtroom workgroup consists of the prosecutor, defense attorney, and judge. Contrary to Hollywood’s

depictions, these professionals work closely together, as doing so promotes efficiency in the adjudication of cases.

Key Terms

contempt power 359 courtroom work

group 372 effective assistance

of counsel 366 grand jury 350

joinder 349 pretextual

prosecution 346 prosecutorial

discretion 340 pro se defense 364

selective prosecution 345

severance 349 subpoena ad

testificandum 359

subpoena duces tecum 359

true bill 354 variance 361 vindictive

prosecution 346

Key Cases

Prosecutor

• Oyler v. Boles, 368 U.S. 448 (1968) • Blackledge v. Perry, 417 U.S. 21 (1974) • United States v. Lane, 474 U.S. 438 (1986)

Grand Jury

• Hurtado v. California, 110 U.S. 516 (1884) • Taylor v. Louisiana, 419 U.S. 522 (1975) • Rose v. Mitchell, 443 U.S. 545 (1979) • Butterworth v. Smith, 494 U.S. 624 (1990)

• United States v. Mandujano, 425 U.S. 564 (1976) • United States v. Calandra, 414 U.S. 338 (1974) • Hale v. Henkel, 201 U.S. 43 (1906)

Defense Attorney

• Gideon v. Wainwright, 372 U.S. 335 (1963) • Powell v. Alabama, 287 U.S. 45 (1932) • Kirby v. Illinois, 406 U.S. 682 (1972) • Johnson v. Zerbst, 304 U.S. 458 (1938) • Strickland v. Washington, 466 U.S. 668 (1984)

Review Questions

1. What is the role of the prosecutor? 2. What are some reasons for nonprosecution? What can

be done to challenge a prosecutor’s decision not to pursue charges?

3. What types of restrictions exist on the ability of the prosecutor to bring charges? Cite relevant cases.

4. How does qualified immunity and absolute immunity operate in the prosecution context?

5. What can be done with overzealous prosecutors? 6. What is joinder? Explain the differences between joinder

of charges and joinder of defendants. 7. Referring to Figure 11.4, what is the size of the grand

jury in your state? Investigate the voting requirements and selection methods of grand juries in your state.

8. Explain some significant Supreme Court decisions with regard to the secrecy of grand jury proceedings.

9. Explain the rights of witnesses testifying before grand juries.

10. Distinguish among three types of investigative powers that grand juries possess.

11. Can a grand jury indictment be challenged? If so, how? If not, why not?

12. What two constitutional provisions does the right to counsel in a criminal prosecution come from?

13. Explain how the right to counsel applies at other stages of the criminal process.

14. Can the Sixth Amendment right to counsel be waived? If so, what are the requirements for a valid waiver? Also, can a judge overrule a defendant’s decision to waive counsel?

15. When might a defendant not be able to hire counsel of his or her choice?

16. Explain the meaning of effective assistance of counsel. 17. What must a defendant show in order to succeed with

an ineffective assistance of counsel claim?

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Web Links and Exercises

1. Prosecutors: Read more about prosecutors at the Web site of the National District Attorneys Association.

URL: http://www.ndaa.org (accessed February 16, 2011). 2. Grand juries: Read more about grand juries. How do

federal grand juries differ from state grand juries? URL: http://campus.udayton.edu/~grandjur (accessed

February 16, 2011).

3. Defense attorneys: Read more about defense attorneys. URL: http://www.nacdl.org (accessed February 16, 2011).

4. Public defenders: Read more about public defenders. URL: http://www.nlada.org (accessed February 16, 2011).

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