For A-Plus Writer Only

an anderson book

Fourteenth Edition I Jacqueline R. Kanovitz

5 TRIAL AND PUNISHMENT 445

.4 -Prohibition of Multiple Punishments for the Same Offense

There is a second aspect to double jeopardy-the prohibition against multiple · hments for the same offense. This aspect has come before the Court repeatedly as

·es have undertaken increasingly aggressive measures to deal with criminals who are - deterred by traditional forms of punishment. These measures have taken a variety : rms, including laws authorizing confiscation of money and property gained from

· al activity;39 "Megan's" laws, requiring convicted sexual offenders to register - the local police when they move into a community;40 sexual predator laws requir-

= :nvoluntary civil commitment ofhabitual sexual offenders upon completion of their -· al sentences;41 and laws imposing enhanced sentences on habitual offenders. 42

-- use they impose additional penalties following a conviction, such laws raise the ilion of what constitutes "punishment" for double jeopardy purposes. Whether burdens like these constitute a punishment is not determined from the offend- rx>int ofview.43 From the offender's point of view, any burden that accrues because of :ommission of a crime feels like a punishment. However, the Eighth Amendment dis-

- hes between civil and criminal penalties. The ban on multiple punishments for the offense is violated only when multiple criminal penalties are exacted. It is not violated one penalty is criminal and the other is civil. Whether a penalty is civil or criminal

on the government's purpose for imposing it. If the purpose is nonpunitive and the -~__... ...... e characterizes the remedy as civil, courts will normally treat it this way.44

_ Iegan's laws and laws requiring involuntary commitment ofhabitual sexual offenders ~ompletion of their criminal sentences are regarded as civil, not criminal, because their

_ - is to protect the community against future crimes, not to punish sex offenders for _ t ones.45 The same is true for forfeiture laws authorizing confiscation of proceeds criminal activity, instrumentalities used to commit the crime, and contraband.46 Con-

n of"guilty property" furthers the nonpunitive goals of preventing wrongdoers from = ilie property to commit future crimes and also from profiting from their wrongs. 47 _ fos t jurisdictions also have statutes imposing enhanced sentences, often as much

le, on repeat offenders. These laws have also been upheld, over double jeopardy =nge, on the grounds that they do not punish the offender a second time for past -:the enhanced punishment is imposed for the present crime, which is considered _ aggravated offense due to its repetition. 48

Sixth Amendment and Due Process Requirements for Fair Trials

-., will now take up consideration of the constitutional requirements for a fair _ ~ost are found in the Sixth Amendment. You are already familiar with one of the

portant provisions for ensuring a fair trial-the Sixth Amendment right to ce of counsel. As explained in Chapter 8, the right to counsel is essential to

446 CoNSTITUTIONAL LAw FOR CRIMINAL JusTicE

protect innocent people from being convicted because they lack the le6 knowledge needed to defend themselves. This chapter investigates other pro are also essential to a fair trial, including the guarantee of a speedy and pub~­ requirement that the tribunal be fair and impartial; the right to trial by jury; ar..: to confront and cross-examine adverse witnesses.

§ 9.6 -Speedy Trial

The Sixth Amendment guarantees defendants, in both state and federal pres;:.-=- the right to a speedy trial. 49 Delays in the administration of justice jeopar interests. First, for those unable to obtain release on bail, delays result in a I dom, a consequence that is particularly tragic for defendants who are later a::_ Even for defendants who are able to afford bail, time spent waiting for trial is and financially taxing. Outstanding criminal charges can damage a person 's ·-.-- curtail employment opportunities, disrupt important relationships, and cause · iety. 51 Most important of all, when the wheels of justice tum too slowly, the · the proceedings may be compromised. Time has a dulling effect on memory. K _ witnesses, in addition, may die or disappear. 52 The problem is particularly - defendants who are incarcerated during this period. The Supreme Court has 1r-

. . . [f) he possibilities that long delay will impair the ability of an accused to C27 himself" are markedly increased when the accused is incarcerated .... c oc=--- in a prison, . .. his ability to confer w ith potential defense witnesses, or even tc . = track of their w hereabouts, is obviousl y impaired . And, while "evidence or:: nesses disappear, memories fade, and events lose their perspective," a ITl<T" lated in prison is pow erless to exert his ow n investigative efforts to mitigate-- erosive effects of the passage of time. 54

Although the speedy trial guarantee is intended to protect the accused, s ....... suffers when justice is delayed. The testimony of prosecution witnesses is sub: ::. same time hazards ; they, too , can die, disappear, or forget, depriving the gov e.._ ::::&1111 crucial evidence. 55 In Barker v. Wingo ,56 the Supreme Court elaborated on ~'-~ quences of tardy justice:

' ' ' en here is a societal interest in providing a speedy trial which exists separate"":: and at times in opposition to, the interests of the accused. The inability of C ()l.; provide a prompt trial has contributed to a large backlog of cases in urban o_._ which, among other things, enables defendants to negotiate more effective pleas of guilty to lesser offenses and otherwise manipulate the system. In o de:- - persons released on bond for lengthy periods awaiting trial have an opportu-"- commit other crimes .. .. Moreover, the longer an accused is free awaiting t1· more tempting becomes his opportunity to jump bail and escape. Finally, ::2' between arrest and punishment may have a detrimental effect on rehabi lita--

When all the costs of delay are taken into account, it becomes apparen: maxim that "justice delayed is justice denied" rings true for everyone.

TRIAL AND PuNISHMENT 447

Attachment of the Right to a Speedy Trial

Criminal trials represent the culmination of a process that begins with the commis- of a crime and proceeds through discovery of the crime, investigation, the defen-

!·s arrest, indictment, arraignment, and beyond. It is necessary to select a point to - the start of the period in which the government must bring the accused to trial or

~the right to prosecute-i.e. , the point at which the right to a speedy trial attaches . ._-nited States v. Marion, 51 the Supreme Court ruled that the Sixth Amendment guar- -~ of a speedy trial starts to run only after the prosecutorial phase commences. By ~erring the right to a speedy trial on an "accused," the drafters manifested an intent ~elude pre-accusatory delays from consideration in determining whether the right _ speedy trial has been denied. As with the right to counsel, the suspect stands zused" only after the government decides to prosecute by obtaining an indictment

"":.i ng formal charges . Delays before a suspect has been charged with a crime are not ~ into account in determining whether a speedy trial has been denied.

Postponing the time of attachment serves the interests of both the public and the _ ed. The prosecution benefits because it will not lose the right to prosecute if it : ow to learn of the crime or to develop the case . Likewise, the would-be defen- -: benefits because the prosecution will conduct a more thorough examination

_: re lodging formal charges, making it less likely that innocent persons will be _ ed. Moreover, criminal defendants already have other legal protection against

ys in charging them. First, for most crimes there are statutes of limitation that =-- ire that criminal charges be made within a fixed number of years after the crime

- een committed. If the delay exceeds the period of limitation, prosecution will _ arred. Second, the due process clause provides a further basis for relief in cases

·hich the prosecution deliberately delays filing charges in order to obtain a tac- __ , advantage over the defendant or does so with knowledge of an appreciable risk -the delay will cripple the defendant ' s ability to put forth an adequate defense. 58

Even though the right to a speedy trial has attached, the prosecution59 or defense60

-top the clock by hav ing the charges dismissed. If the prosecution subsequently _ - tates the charges, the period in between will be excluded from Sixth Amendment

putation. Only the period during which a defendant bears the status of an accused ::lken into account in determining whether a speedy trial has been denied.

Determining Whether the Right Has Been Denied

There is no set period in which a trial must take place after prosecution has begun. - er, in determining whether the right to a speedy trial has been denied, the Supreme :rrt balances four factors: 6 ' (1) the length of the delay; (2) the reasons for the delay;

- whether the defendant asserted his or her right to a speedy trial or sat idly by; and - whether the delay prejudiced the defendant's case.

There is only one remedy for deprivation of the right to a speedy trial-permanent · ssal of the charges. The government cannot compensate the accused for unconsti- nal delay by proceeding with the trial and subtracting the period of unconstitutional

448 CoNSTITUTIONAL LAw FOR CRIMINAL JusTICE

delay from the sentence imposed. 62 Freeing defendants without trial even thoug; may be guilty is a serious action. Consequently, the finding that delay has denie defendant a speedy trial is reserved only for the most egregious cases

1. Length of Delay

The first factor, duration of the delay, operates as a red flag signaling the ... ~ inquire into the other three factors . An inquiry is necessary only when the delay=- enough to be presumptively prejudicial. 63 What constitutes a presumptively prej··- delay varies with the nature of the case. A presumptively prejudicial delay in the of an ordinary street crime, for example, would be less than for a tax evasion case. · because less time is needed to prepare for trial and because eyewitness testimo _ kind used to prove street crimes , grows stale more rapidly than documentary e\i..; the kind typically presented in a tax evasion case. 64 Although the Constitution doe' set an absolute time limit, some jurisdictions have adopted statutes requiring aub dismissal of charges against nonviolent offenders who are incarcerated while a trial unless the trial is brought within a relatively short, fixed period. 65

2. Reasons for Delay

The second factor in speedy trial analysis focuses on allocating responsibili ty f;_ delay. The Sixth Amendment does not protect an accused against delays he has reqr or for which he is responsible. 66 An accused cannot complain of delays resulting government's inability to locate him while a fugitive from justice,67 of trial posL;· ments caused by his own illness68 or due to defense motions seasonably acted up<r.:.. for periods during which he was mentally incompetent to stand trial.7° The only ,.b relevant for Sixth Amendment purposes are those attributable to the government.

However, some reasons for prosecutorial delay are dealt with more harshl_ others. When the delay results from reasons beyond the government's control, the inability to locate a crucial prosecution witness , an appropriate delay Ill2_ excused. Deliberate delays interjected in order to impair the defense, in contras weighed heavily against the govemment. 71 Even negligent delays can, at times, speedy trial violation. For example, in Doggett v. United States ,12 the authoritie5 nothing to search for the defendant for six years due to an erroneous assumptio::;. he was out of the country. Had they made an effort to locate him, they could ha\·f covered his whereabouts in minutes, because he was living and working openly his own name. Characterizing this delay as extraordinary, the Supreme Court rul-- Doggett had been denied his right to a speedy trial.

3. Defendant's Assertion of Rights

Prior to Barker v. Wingo, a majority of federal courts adhered to the so-called "d waiver" rule . This rule required the court to disregard any delays occurring befor-:: accused demanded that his case be docketed for trial.73 The defendant's silence in thr>

TRIAL AND PUNISHMENT 449

·as regarded as an automatic waiver. The Barker Court acknowledged that the ~~-· timely assertion of his rights was "one of the factors to be considered," and

- ilure to assert the right" would "make it difficult for a defendant to prove that - · ed a speedy trial," but declined to treat this factor as automatic grounds for

claim. A defendant, for example, cannot be faulted with delay in making a hen he is unaware that charges against him are outstanding. 74 Even when the

_.,..____ · aware of the charges, the impact of not demanding a speedy trial varies with Ihe failure, for example, would be weighed more heavily against a defendant

:.u.e advice of his attorney, makes a strategic decision to acquiesce in the delay, the government will abandon the prosecution, than against one who is uncoun- ·hose failure to make a timely demand for trial is caused by ignorance.

::- ejudice to Defendant

er the defendant was damaged by the delay is the last and most important - - factor is evaluated in light of the interests that the constitutional guarantee

__ · trial protects. Accordingly, delays are more serious for defendants who are _ -o oppressive pretrial confinements than for those who are free on baii.75

~·en for defendants who are free on bail, delay can be harmful because job es may be foreclosed , important relationships may be strained, and anxieties

e can be immobilizing . However, the most serious damage is that which efendant's ability to defend. Defendants who are able to demonstrate that

=_ e witnesses have died, disappeared, or forgotten important facts during delay for which the government is responsible have a strong basis for

_ -"Y were denied their constitutional right to a speedy trial.

_ t.h Amendment also guarantees the right to a public trial. The oppressive :the English Court of Star Chamber sparked fear and distrust of secret _ guarantee of a public trial was included to safeguard against arbitrary

_,. ial power behind closed doors. Public trials are also important because _ ~itizens an opportunity to observe trials and to evaluate whether judges ~fulfilling their constitutional responsibility to administer justice. 77 Con-

al trials in an open courtroom enhances "both the basic fairness of the and the appearance of fairness so essential to public confidence in the

_- o a public trial extends to ancillary pretrial proceedings, such as the jury -e -9 and hearings on motions to suppress illegally seized evidence, 80 as

itself. However, it does not apply to grand jury proceedings, which n conducted in secret. 81 Secrecy is important in grand jury proceedings

:-"putation of innocent people should the evidence be found insufficient -.:· trnent. 82

450 CONSTITUTIONAL LAW FOR CRIMINAL JUSTICE

Although the Supreme Court has vigorously protected a criminal defendan- to a public trial, this right is not absolute. Occasions may arise when a judge cc~-~· it necessary to exclude members of the public from the courtroom. Before tat...o action, the judge must make findings that this action is necessary to advance riding interest and that there are no reasonable alternatives to protect this in· Closure, for example, is allowed when a child witness is called to testify about~ too embarrassing or frightening to discuss in public. 84 Even here, the judge m case-specific findings that, because of the sensitive nature of the testimony ~­ child's age, closure is necessary to protect the child's physical and psycho well-being.

The right to a public trial extends beyond the accused. Members of the pu the media have a corresponding right to attend criminal trials, but their righr - from the First Amendment, not the Sixth. The First Amendment guarantees m of the public and the media the right to attend criminal trials so that they can and evaluate the workings of the judicial system. Even when a defendant asks the _ to clear the courtroom, and this sometimes happens, judges must consider the · of the public and press in ruling on the motion. Exclusion of members of the pu press from the courtroom, at the defendant's request, is proper only when this a= necessary to protect the defendant's right to a fair trial. 85

§ 9.8 -Confrontation of Adverse Witnesses

The Sixth Amendment also guarantees an accused the right to confront w · who testify against her in open court. A courtroom confrontation enhances the re' of testimony in several ways .86 First, testimony in court is given under oath and alty of perjury. Second, jurors have an opportunity to observe the witness's d and decide whether the witness is telling the truth. Finally, and most importanc testimony given in open court is subject to cross-examination. Cross-examina · been described as the "greatest legal engine ever invented for discovery of truth. witness may have had an inadequate opportunity to observe the matters about w~­ testifies, her memory may be faulty and language imprecise, or she may not be - the truth. Cross-examination gives the accused an opportunity to challenge a wi veracity and expose weaknesses in her testimony. Cross-examination is so centra: right of confrontation that the Supreme Court has often spoken of the Sixth Amer:.- as guaranteeing the "right to confront and cross-examine" adverse witnesses as terms appeared in the Constitution. 88 Because the confrontation clause provides_ damental mechanism for ensuring the reliability of the evidence offered aga· accused, it is regarded as an integral part of due process and is binding on the s·--

Historically, the right to confront adverse witnesses meant the right to c them face -to-face. While a defendant could forfeit this right by not showing _ trial90 or by being so disruptive that it was necessary to remove him from the co this right could not otherwise be denied.91 However, the Supreme Court has

TRIAL AND PUNISHMENT 451

ed out an exception for child-sex-abuse trials. 92 Putative child-sexual-abuse victims _ be permitted to testify via one-way, closed-circuit television if the judge deter-

that facing the accused in the courtroom would cause severe trauma and impair ~hild's ability to testify.

,. 9 -Fair and Impartial Tribunal

Few rights are more important than the right to be tried before an impartial tribunal. ""' ixthAmendment guarantees the right to an impartial jury, but impartiality is also an

_;::-edient of due process oflaw and applies in bench trials as well. There are many paten- sources of bias. The trier of fact (the judge or jury) may harbor racial or religious

__ _._dice against the defendant; they may stand to gain, in some way, from his con vic- - they may have past ties that cause them to believe the defendant is capable of dia- :al deeds; or they may harbor animosity toward the defendant because of things they ~ heard or read about the case. Each of these influences can be corrupting.

_-e 9.2 ents of an Impartial Tribunal

--e judge sitting as a trier of fact or the members of the jury panel must:

not hove a stoke in the outcome of the case not bear any personal animosity toward the specific defendant b e able to set aside any general prejudice toward a class to which the defen- dant belongs b e able to set aside any preconceived notions about the proper outcome of the case and be able to render a verd ict based solely on the evidence pre- sented at trial.

.-\.n obviously biasing influence exists when the judge or a juror has a financial ·e in the outcome. In Tumey v. Ohio, 93 the Supreme Court set aside a conviction

_ se the judge who tried the case was paid from the fines and costs levied against . _ ns found guilty, rather than out of the general funds, which is the normal way

5es are compensated. This method of compensation created an incentive to resolve rful cases in favor of fee-generating guilty verdicts. In Mayberry v. Pennsylvania,94 the judge who tried the case harbored animosity toward

defendant for reasons that were richly deserved. The defendant, who insisted on repre- - g himself, showed contemptuous disdain for the judge's authority. When he disagreed

·- a ruling, he would deride the judge, calling him names like "hatchet man for the state," _- sonofabitch," and "tyrannical old dog." His conduct eventually became so insuffer-

~ :hat he had to be gagged in order for the trial to proceed. After the jury returned a · t, the judge held the defendant in contempt of court and sentenced him to between 11 _ years in prison. The Supreme Court set the contempt conviction aside. Characteriz-

= e defendant's trial demeanor as "a shock to those raised in the Western tradition," the

452 CoNSTITUTIONAL LAw FOR CRIMINAL JusTICE

Court ruled that a judge who has been the target of repeated vitriolic attacks must trial of contempt charges over to another judge who does not bear the "sting of .. . - ous remarks."95 A defendant has a right to be tried before an impartial tribunal eY the defendant is responsible for the animosity of which he or she complains.

Special precautions are sometimes necessary during jury trials that woulc .:. required during a trial before a judge. The defendant, for example, may not be : to appear before the jury in prison clothing because jurors might construe thiJ - dence of guilt. 96 This does not mean that a defendant is entitled to have the co purified of everything from which jurors might infer guilt. Some practices, presence of armed guards in the courtroom, are necessary for security. When a is necessary for security, the defendant cannot complain that it may create an able impression on the minds of the jurors.97

Finally, and most importantly, a fair trial means one in which the defe""' guilt is determined based on testimony developed in open court, and not on p· _ ceived notions and prejudices .98 Of course, a panel of jurors that is totally =- prejudice is a goal that is seldom realized. All human beings are prejudiced, -- on some level, about some issues. To ferret out the worst prejudices, defense is permitted to conduct a voir dire examination of prospective jurors during selection process to determine whether they have " disqualifying attitudes" a case. If so , the potential juror will be "struck" from the panel. What co nsti disqualifying attitude depends on the issues involved in the case. A pros juror's admission that he favors the death penalty and would automatically impose it if the defendant is found guilty would be a disqualifying attitude in penalty case because it would prevent the juror from considering mitigating : in imposing the sentence. 99 The same attitude, however, would not disquali::_ juror from sitting in a noncapital trial, even though this attitude may indicate <" in favor of conviction.

§ 9.10 -Pretrial Publicity

A fair and impartial tribunal is one that reaches its decision solely from dence presented at the trial, rather than from information learned elsewhere. The of evidence, which are designed to filter reliable facts from unsubstantiated would mean little if the jurors came to the trial already knowing the " correct our based on things they had read in the newspaper.

There is usually no problem assembling a jury panel that will make its d based solely on the evidence presented at trial because members of the jury have no independent knowledge of the case. To help ensure that no one with in dent knowledge finds his way onto the jury, trial counsel will be allowed to e. prospective jurors to learn whether they know the defendant or the victim, or haYe- other connection to the case that might provide a source of independent knowl _ a potential juror indicates having preconceived notions about the case that could --

TRIAL AND PUNISHMENT 453

ision, the judge will excuse the juror so that another, without a connection to the ~an be selected. ~owever, in this day of mass media, some cases are of such intense public interest - may be impossible to find a juror who has not heard of the case before being

_ -=-d to sit on the jury. Mr. Justice Frankfurter summarized this problem when he oned:

- w can fallible men and women reach a disinterested verdict based exclusively :~ what they heard in court wh en, before they entered the jury box, their minds

ere saturated by press and radio for months preceding by matters designed to ::-a b lish the guilt of the accused? 100

e trial ofDr. Sam Sheppard during the 1950s is the case that galvanized support :>-orm. Sheppard was a prominent osteopathic physician whose pregnant wife was ~ ludgeoned to death in their suburban Cleveland home. He claimed that his wife

n attacked by an intruder who overpowered him. The case featured high society, - :.rrder, and mystery and enthralled the public. The media lost all sense of perspec- ::: ·en before Dr. Sheppard had been charged with murder, the front pages of news~ _ were proclaiming his guilt and demanding "justice." During the weeks and -- before the trial, headlines were saturated with stories of Sheppard's lack of

tion, his refusal to take a lie detector test, his secret love affairs, interviews with - -hell witnesses," and other prejudicial disclosures. The courtroom was packed :;:porters throughout the trial. The reporters often commented on the evidence - front of the jury. The state appeals court described the trial as "a 'Roman holi- - • the news media" while the Supreme Court called it a " carnival atmosphere." 101

_ d spent 10 years in prison before the U.S . Supreme Court declared that he had :!d an unfair trial and ordered that he be released. Although he was acquitted at - tri al, he and his family were ruined.

onstitutional Standards for Choosing an Impartial Jury 1ten There Has Been Significant Pretrial Publicity

nation in which most citizens either read the newspaper or own radios or televi- e facts associated with names like O.J. Simpson and Scott Peterson are likely to the attention of virtually every person qualified for jury service. If media expo-

= me of the facts of the case was enough to disqualify prospective jurors, selecting . tionally acceptable jury would be impossible except in routine cases. The due :itandard for impartiality does not require that the prospective juror be unfamiliar case, or even that the juror hold no "preconceived notion as to the guilt or inno-

:-me accused." 102 Rather, the test is whether the 'juror can lay aside his impression :m and render a verdict based on evidence presented in court." 103

- g their voir dire examination, prospective jurors will be asked if they are ith the case and, if so, whether they believe that they can decide the defen-

=:lllt based solely on the evidence. A juror's affirmation that she can make an

454 CoNSTITUTIONAL LAw FOR CRIMINAL JusTicE

unbiased determination does not conclusively establish this fact. The defendan: _ attempt to show that the panel was biased. For example, in Irvin v. Dowd,1CH community was flooded with prejudicial media reports during the six months r the trial. Ninety percent of those questioned expressed uncertainty about whe- could render an impartial verdict based on the evidence developed at the trial the 12 jurors who were eventually selected to sit in the case admitted to having:.- ceived notions about the defendant's guilt. However, because they stated that th _ put their beliefs aside and act impartially, the trial court allowed them to sit in tt.:: The Supreme Court was skeptical about their ability to do this and reversed the .~ tion, stating, " [ w ]here so many, so many times, admitted prejudice, such a stat impartiality [by the jurors actually selected] can be given little weight." 105

Courts consider the following factors in deciding whether prejudicial news _ age compromised the impartiality of the jury.

1. Prejudicial Nature of the Publicity

Factual news reports containing straightforward, unemotional ac co .. - unfolding events are less likely to be prejudicial than editorialized indictments.;:- ever, even factual accounts can compromise the integrity of the proceedings they lead to disclosure of incriminating evidence that is later ruled inadmissi- Reports about inadmissible confessions are particularly damaging because p::- usually remember them. In Rideau v. Louisiana, 107 the accused confessed - details of a brutal rape-murder during a televised interview from jail. The Su;:. - Court set his conviction aside on the grounds that it was impossible for the ac to receive a fair trial after the entire community had seen him confess on tel ens

2. Extent of Publicity

The extent of the publicity is also important. 108 Adverse publicity must be ..,._ sive before an accused can complain of being denied a fair trial.

3. Proximity to Time of Trial

The length of time between the damaging disclosures and the trial is a third _ sideration. 109 Memories tend to fade with time . Consequently, the chances offindir.= impartial jury improve as the interval between the damaging disclosures and the - grows. 110 Jury exposure to contaminating news stories during the trial is the most- gerous, but is also the easiest to prevent. 111 The judge can order the jurors not to :-"'"' watch, or listen to any reports, or may even sequester them in order to preve-· contact with the outside world while the trial is in progress.

4. Attitudes Revealed on Voir Dire Examination

Prospective jurors are subject to voir dire examination. The attitudes they r on voir dire are likely to mirror the sentiments of the community. In Murphy v. F. ida, 112 the Supreme Court observed:

TRIAL AND PUNISHMENT

--e length to which the trial judge must go in order to select jurors who appear to =s ·mpartial is ... (a) factor relevant in evaluating those jurors' assurances of impar- -- , . In a community where most veniremen will admit to a disqualifying prejudice. -, reliability of the others' protestations may be drawn into question; for it is then -:lfe probable that they are part of a community deeply hostile to the accused, _ d more likely that they may unwittingly have been influenced by it. 113

_ 1ethods of Counteracting Media Contamination _-i.fter It Has Taken Place

455

ce a community has been exposed to media contamination, there are several :!!!Iions a trial judge can take in an attempt to preserve the accused's right to a fair

partial trial. First, special efforts can be made in the jury selection process to ~- and eliminate prospective jurors who hold fixed opinions about the defendant's y asking probing questions on voir dire. However, as Irvin v. Dowd shows, once

unity has been thoroughly saturated, probing voir dire examinations may not ugh to prevent the damage from seeping into the jury box. A second alternative

- stpone the trial until the case has lost its notoriety. Although delay has antiseptic ~. this method of securing a fair trial has serious drawbacks: repairing damage to :onstitutional right is achieved at the cost of injury to another. By the time the case

st its notoriety, it may no longer be possible to afford the accused a speedy crim- ·al. In the trade-off, the accused has been forced to give up his right to a speedy order to obtain an impartial jury, both of which are his constitutional due.

Changing the venue of the trial to a different community may afford an alternative ~~y. 1 14 However, this solution will work only ifthe publicity has been localized. No

:unity is so remote that a name such as O.J. Simpson is unknown. For cases in which =:;:mn.i.nating disclosures have been plastered across the front pages of newspapers all

:he country, finding a constitutionally acceptable jury may be next to impossible. _-one of the methods for trying to undo damage after it has occurred are entirely - ctory. Their efficacy is incapable of being measured, and their use is often accom- ~ by added costs, delays, or the sacrifice of other constitutional rights.

Proactive Measures Designed to Avert Media Contamination of Criminal Trials

"Juring the 1970s, criminal trial judges began experimenting with new measures _ ed to protect an accused's right to a fair trial. The older methods focused on ~ing damage after it happened. The newer approaches were bolder-they attempted

=ep inflammatory information out of print. The media's response was to claim the ~ction of the First Amendment.

~· Restraining Publication: Media Gag Orders

_.1edia "gag orders" were one of the first approaches to be tried. Trial judges in _ profile cases would enter orders directing media representatives to refrain from

456 CoNSTITUTIONAL LAw FOR CRIMINAL JusTICE §

reporting specified details that posed a threat to the fairness of the proceedings. :-· approach was reviewed in Nebraska Press Association v. Stuart. 115 A few days afte: accused was arrested in a small, rural community for murdering six members of same family, the trial judge issued an order prohibiting representatives of the media · publishing information about the existence and contents of confessions, inculp-- statements, or other "strongly implicative" details. The Supreme Court unanim ruled that the First Amendment prevents trial judges from restraining publicati news reports about what transpires in open court. Criminal trials are public events what goes on in the court room is public property. The Justices, nevertheless, sp''" whether the First Amendment prevents trial judges from restraining publication of - aging information learned from other sources, such as from attorneys or the pn Three took the position that media gag orders are always unconstitutional wh it: remainder stopped just short of this . However, the gist of this case is that of all th ious methods for controlling prejudicial pretrial publicity, ordering media repre.,. tives to refrain from publishing lawfully gathered information is the least acceptal:- -

2. Preventing Media Access to Newsworthy Information: Closure Orders

After N ebraska Press Association , criminal trial judges switched to " cl orders. " Trial judges would close the proceedings to media representatives and bers of the public when testimony and arguments were being presented that the _ did not want reported. The use of closure orders set the stage for a second ro constitutional litigation. The issue was no longer whether criminal trial judges - restrain publication of lawfully gathered information, but whether they could pn the media from learning the facts in the first place.

Gannett Co. v. DePasquale 116 was the first closure case to reach the U.S. Su Court. The trial judge, at the request ofboth the prosecutor and the accused, close_ court during arguments on a pretrial motion to suppress evidence alleged to hay - - illegally seized. The Supreme Court upheld the closure order, noting that the p of a pretrial suppression hearing is to eliminate inadmissible evidence so that juro::: not be made aware of its existence at the trial. This purpose could be defeated outcome of a pretrial suppression hearing were carried in the news. The ru:e emerges from Gannett Co. v. DePasquale and subsequent cases 11 7 is that trial ~ may close specified portions of criminal proceedings if, but only if: (1) there is_ stantial probability that publicity from open proceedings will compromise the ac, right to a fair trial and (2) alternatives short of closure would be inadequate to this right. An order clearing the courtroom for the entire duration of the trial, for - ple, would violate the First Amendment because publicity about what happens trial discloses nothing the jurors have not already heard. 118 The real threat is tha: _ (actual or potential) will read about damaging information that was not in trod the trial or comments on evidence that was introduced. This danger can be mana~ least in part, by excluding media from pretrial suppression hearings, admonis

TRIAL AND PUNISHMENT 457

ot to read news articles or to listen to radio or television reports about the case :necessary, by sequestering them during the trial.

Controlling the Release of Information to the Media

- :hough media gag orders violate the First Amendment, there is nothing wrong ering prosecutors, defense attorneys, prospective witnesses, and police officers ~ from discussing specific aspects of a case with the media. 119 The American -- ciation (ABA) has promulgated a set of guidelines governing pretrial release ~ation by lawyers, prosecutors, judges, and law enforcement officers. 120 Dis- - of the following matters carries a "substantial likelihood of prejudicing crimi-

eedings" and, therefore, should be avoided:

a suspect's prior criminal record a suspect's character or reputation opinions about the suspect's guilt, the merits of the case, or the strength of the government's evidence the existence or contents of confessions or inculpatory statements, or a sus- pect's refusal to make a statement the outcome of examinations or laboratory tests or the suspect's refusal to ooperate

the identity, expected testimony, criminal records, or credibility of prospec- tive witnesses the possibility of a plea bargain, guilty plea, or other disposition any other information that the officer knows or has reason to know would be inadmissible as evidence in a trial.

: Bowing matters, on the other hand, are considered appropriate subjects for ent:

- e accused's name, age, residence, occupation, and family status - e identity of the victim (if release of this information is not otherwise pro-

"bited by law) ormation necessary to aid in a suspect's apprehension or to warn the pub- of dangers

~ uests for assistance from the public in obtaining evidence 5eneral information about the investigation, including its length and scope,

d the identity of the investigating officers e facts and circumstances surrounding the arrest, including its time and

-:ace, and the identity of the arresting officer -~general nature of the charges against the defendant, with an accompany- = explanation that the charges are merely accusations and that the defen-

t is presumed innocent until proven guilty scheduling or results of any judicial proceeding

_ · information contained in a public record.

458 CoNSTITUTIONAL LAw FOR CRIMINAL JusTicE

The ABA guidelines also address the propriety of granting media repre access to persons in police custody. While police are not required to take sp cautions to shield persons in custody from news cameras, they should not for picture-taking sessions or make them available for press conferences unl,... consent after being informed of their right to refuse.

The ABA standards are binding on lawyers, who can be disciplined for '·-~ them. 12 1 The standards can become effective against police officers through a c~=---r route, by encouraging police professional organizations and departments to adop- codes of professional responsibility and departmental regulations. Law enforcemer;· cies would do well to study the ABA standards. Because the First Amendment · · power of judges to halt publication of damaging information once it finds its way hands of the media, prosecutors, attorneys, and law enforcement agencies must be about releasing information. There is no First Amendment duty to grant media r, tives access to crime information that is not available to the general public. c - enforcement agencies restrict press releases along the lines contained in the AR-- dards, this will go a long way toward protecting the right of the accused to a fair

§ 9.11 -Trial by Jury

Trial by jury is an ancient and venerable institution. In 1215, the Magna Ca:::::: claimed that no free man could be condemned to death or sent to prison except b judgment of his peers. 123 While the Magna Carta laid the foundation for the jury. little evidence of the existence of a jury concept even remotely resembling the m until the fourteenth century. 124 For a while, the jury method of determining guilt e. competition with several older, barbaric methods, such as "trial by ordeal" and -::- battle." 125 Gradually, the older methods fell into disuse and the jury method emerg, - sole procedure. By the time the United States was settled, the institution of trial panel of 12laymen, known as a petit jury, had a tradition dating back several ce~

Fig ure 9.3 Constitutional Right to Trial by Jury

Constitutional Required Selection Process Need for Entitlement Number of jurors Unanimity

Only for offenses Tw elve in fede ra l Jury venires must Requ ired in fer....c:= carrying a pena lty cou rts; no fewer b e d rawn from a t rials, but not - of six months or than six in state source t hat is fa irly sta te t ria ls unres: more in jail. courts . representative of the jury comp:-:~

the community. only six persor;:o Peremptory strikes may not be used to exclude potentia l jurors solely because of their race or gender.

~- --- ----- ----- - - --- -

TRIAL AND PUNISHMENT 459

~.-illiam Blackstone, writing in 1768, hailed the jury principle as the " glory of _ - law" and "the most transcendent privilege which any subject can enjoy or wish

While Blackstone's praise seems lavish by modem standards, his words reflect xnth-century sentiments. Those who drafted our Constitution held the jury prin- ~ such high ,esteem that they took double precautions to ensure its preservation.

le III, section 2 ofthe original Constitution, they declared that "[t]he Trial of all -.except in Cases oflmpeachrnent, shall be by Jury ... . " When the Bill ofRights

.;ded two years later, they repeated in the Sixth Amendment that " [i]n all criminal =:utions, the accused shall enjoy the right to ... trial, by an impartial jury ... "

e jury system offers at least three advantages over other methods of determining rirst, it gives citizens an opportunity to participate and, through shared participa-

- evaluate the workings of the criminal justice system. Second, it imparts human- = ::ualities and the community 's sense of justice into the guilt-determining process.

_-. it enhances public confidence in criminal verdicts. In Duncan v. Louisiana,127

_ reme Court observed:

ht to jury trial is granted to criminal defendants in order to prevent oppression e Government. Those w ho wrote our constitutions knew from history and expe-

:=-'!Ce that it was necessary to protect against unfounded criminal charges brought -: eliminate enemies and against judges too responsive to the voice of higher ~- ority. The framers of the constitution strove to create an independent judiciary _.;- insisted upon further protection against arbitrary action. Providing an accused

the right to be tried by a jury of his peers gave him an inestimable safeguard :;"ainst the corrupt or overzealous prosecutor and against the complacent, biased, : ecc entric judge. If the defendant preferred the common-sense judgment of a

o the more tutored but perhaps less sympathetic reaction of the single judge, :=- .va s to have it ... 128

~ e Sixth Amendment right to trial by jury is deemed a fundamental right that tes an integral part of due process of law. Accordingly, states are required to

~jury trials in all cases in which this right is available in federal court. 129

roceedings in Which a Jury Trial Is Available - e English common law recognized limited instances in which defendants did

_ oy the right to trial by jury. Defendants, for example, were not entitled to a jury - riminal prosecutions brought for "petty offenses. " 13 0 Although the Sixth

_......_..; .... ent uses sweeping language, proclaiming that the accused shall enjoy the right · y jury in " all criminal prosecutions," the Supreme Court has consistently inter-

- - · s language as perpetuating the historic distinction between petty and serious -.

13 1 The only dispute has been about where to draw the line. --e Supreme Court early on rejected the felony-misdemeanor distinction because - - · demeanors carry substantial penalties, as well as significant stigma. 132 This

·as finally settled in Baldwin v. New York,133 where the Supreme Court ruled unishment authorized by the legislature is the best indicator of the seriousness ense. The Court drew the line at six months in prison. Where the maximum

460 CoNSTITUTIONAL LAw FOR CRIMINAL JusTicE

punishment authorized by the legislature does not exceed six months in pn advantages of speedy, inexpensive nonjury trials outweigh the hardship to dant of being tried by a judge. The offense is , therefore, petty and there is no ~ tional right to a jury trial. 134 The Supreme Court has expanded the right to be - jury to criminal contempt charges, even though no such right was recognized common law. 135 Six months is the maximum sentence a judge may impose for - contempt without empaneling a jury. 136

There are several other proceedings in which there is no right to trial by j _ include: (1) proceedings before a military tribunal, 137 (2) juvenile court proc and (3) sentencing proceedings .139 However, defendants facing capital punis entitled to have a jury determine the existence or nonexistence of aggravating stances before the death penalty may be imposed. 140

Legislatures may not authorize juries to impose the death penalty, whi le ~ life imprisonment the maximum sentence that can be imposed by a judge. 141 The tendency of such a provision would be to discourage defendants from as sertir:.= constitutional right to be tried by a jury.

B. Required Number of Jurors The common law trial jury (petit jury) consisted of a body of 12 indi·

selected at random from the community, whose function was to hear ev idec:::: sented in open court and to render a unanimous verdict. 142 This pattern con..; ~ exist today in the federal courts and in most states.

However, at least five states-Florida, Louisiana, South Carolina, Texr-· Utah-provide for less than 12-member juries in the trial of felony cases and - · eight states provide for them in the trial of misdemeanor cases. 143 Once the U. S. S . Court decided in Duncan v. Louisiana144 that the Sixth Amendment right to tri al i _ was binding on the states, it was forced to determine whether the Constitution re 12-personjuries in state criminal prosecutions, the same as in federal courts. This - tion came before the Court in Williams v. Florida ,145 in which a felony convicti returned by a six-person jury. The Court determined that the number " 12" w as - immutable corollary of the Sixth Amendment right to a jury trial. Justice White. wrote the majority opinion, stated that the relevant inquiry was not whether a par.:L feature was buttressed by centuries of tradition, but whether it was critical to the _ constitutional role. Having cast the inquiry in this form , Justice White concluded:

(T)he essential feature of a jury obv iousl y lies in t he interposition between .. _ accused and his accuser of the commonsense judgment of a g roup of layme- and in the community participati o n and shared responsibi lity that results (sic) fro - that group ' s determination of guilt or innocence. The performance of this ro le is a function of the particular number of the body that makes up t he jury. To be surE the number should probably be large enough to promote group deliberation, frE*' from outside attempts at intimidation, and to provide a fa ir possibility for obtainir·~ a representative cross-section of the community. But we find littl e reason to t hi that these goals are in any meaningful sense less li ke ly to be achieved when t he j

TRIAL AND PUNISHMENT

-.oe rs six, than when it numbers 12 .... And, certainly the rel iability of the jury as __ tfi nder hardly seems likely to be a function of its size. 146

461

_ x -person jury is the smallest constitutionally acceptable size. In Ballew v. "- the Supreme Court ruled that a state criminal defendant was deprived of his Fourteenth Amendment rights when he was tried before a five-person jury tty offense. A five-person panel, the Court stated, is too small to achieve the

- -ed representation and diverse points of view that the constitutional right to a - designed to ensure.

~uirement of Unanimity -cr the common law, jury verdicts had to be unanimous. If the jurors could not ~ · tri al would be declared leaving the accused subject to retrial. This require- - firmly entrenched in Anglo-American jurisprudence when the Constitution -~ and continues to be the prevailing practice today. However, a few states

oned it. 148 In Louisiana and Oregon, for example, verdicts can be returned felony cases by a vote of 10 out of 12 jurors, 149 but unanimity continues

:ed in capital cases .150 Several other jurisdictions have eliminated the require- ..::anirnity for misdemeanor trials.

egon statute allowing 10 out of 12 jurors to return a verdict was upheld v. Oregon. 15 1 The Court ruled that the Sixth Amendment requires unani-

- · ts in federal criminal proceedings , but not in state trials. In Burch v. _

5~ the Supreme Court was asked to decide whether states could combine --·--·- animous verdicts with a substantial reduction in the jury 's size. The stat-

-;:yiew allowed a verdict to be returned in nonpetty misdemeanor trials by ·e out of six jurors. This time Supreme Court balked, holding that when a

--e jury 's size in half, the Sixth Amendment requires that the verdict must

agraphic Composition of the Jury - _ :to a jury trial means the right to be tried before a jury that is drawn from

· ·e cross-section of the community. There are two theories for challenging •r-::::s::-nu:ttlve JUry.

- Pools and Venires

:heory derives from the Sixth Amendment guarantee of an impartial jury. Court has interpreted an impartial jury to mean one that is drawn from a

._ ·on of the community.15 3 Juries representing a fair cross-section of the e more likely to reflect the values of the community, act impartially, and - ence in the judicial system. 154 This does not mean that trial juries must

_ rti onal representation of the v arious demographic groups in the

462 CONSTITUTIONAL LAW FOR CRIMINAL JusTICE

community. Defendants are not entitled to a jury of any particular compo~ cross-section requirement guarantees criminal defendants the opportuni._ sentative jury by prohibiting systematic exclusion of distinctive groups w .:-- munity from the jury pools and venires that provide the source from w= ._ selected to sit in a particular trial are drawn. 155 To establish a fair cross-se the defendant must prove that members of a distinctive group were no - sented in the jury venire from which his trial jury was drawn, and tha: exclusion in the jury-selection process was responsible for the underrep~

2. Prosecution's Use of Peremptory Challenges

The second theory for challenging the demographic characteristics of th the Fourteenth Amendment equal protection clause. 157 This theory focuses on- tion's exercise of peremptory challenges. 158 Both sides in a criminal case are strike a certain number of potential jurors without cause (i.e., without having- the potential juror is biased). These are called peremptory challenges. Althoug ecutor does not have to give any particular reason for exercising a peremptor: _, - ,... they may not be used to exclude potential jurors solely because of their race

E. Waiver of the Right to Jury Trial Under the common law of England, trial by jury was required for

offenses. The defendant could not waive a jury and be tried by a judge.1

"consent" was technically required, the defendant could be tortured into su Even after torture ceased, the accused had no choice as to the mode of trial. were the only type available.

In modern times, all jurisdictions offer bench trials as an alternari' trials. Still, the ability to waive a jury trial is often restricted. The right r jury trial and be tried by a judge is often conditioned upon the approval o..--- ~ the prosecutor, or both. Conditioning the right to waive a jury trial upon at': the prosecutor or court does not violate the Sixth Amendment because the stitutional right a defendant has concerning the mode of trial is the right by a jury. 162

§ 9.12 -Preservation and Disclosure of Evidence Favorable to the Defense

The prosecutor occupies a unique position in our adversarial system o- justice. Several decades ago, the Supreme Court observed:

The United States Attorney is the representative not of an ordinary party to a ::_ troversy, but of a sovereignty whose obligation to govern impartially is as c or:-;- ling as its obligation to govern at a ll; and w hose interest, therefore, in a c"~

TRIAL AND PUNISHMENT 463

- n is not that it shall win a case, but that justice shall be done. As such, he _ =eculiar and very definite sense the servant of the law, the twofold aim of

-nat guilt shall not escape or innocence suffer. He may prosecute with ess and vigor-indeed, he should do so . But, while he may strike hard

-e is not at liberty to strike foul ones. It is as much his duty to refrain from _s· methods calculated to produce a wrongful conviction as it is to use every ::-e means to bring about a just one. 163

_ -ervation marked the beginning of a line of cases that eventually developed stitutional duties imposed on the prosecution and, indirectly, the police. The

- o disclose to the accused any evidence within the government's possession .:ge that is favorable to the accused and material to guilt or punishment. The _-is to preserve evidence that might be expected to play a significant role in

~---- Both obligations are grounded on the fundamental fairness implicit in due er than on specific language found in the Constitution.

Requirements for Disclosure of Exculpatory Information

_,..rosecution's constitutional duty to disclose exculpato ry evidence to =-d evolved from cases in which the prosecutor had either knowingly used

onyl 64 or allowed false testimony to go uncorrected. 165 When this happened,

of Police Obligations to Preserve and Disclose Exculpatory Evidence

- - _ e a duty to preserve physical a t:

exculpatory value that is ::::-'ent to them and

:- :J type that the defense cannot -::: by other means.

Duty to Disclose

Police have a duty to make sure that the prosecutor is aware of all ev idence known to the police or anyone under their control that may help to:

1 . show that the defendant is innocent

2. counter the prosecution's version of the events or

3. challenge the credibility of key prose- cution witnesses.

--.-- ~ ·~e Court had little trouble concluding that use of perjured testimony denied _ dant due process. However, in Brady v. Maryland, 166 the Supreme Court took - .eap and transformed what had begun as a narrow doctrine concerned with the _?erj ured testimony into a broad obligation to disclose all evidence within the

ent's possession or control, favorable to the accused, that is material to guilt -..:u..ucuent.

3rady, the prosecutor failed to disclose that one of Brady's accomplices had -;;xi to the killing for which Brady was charged, even though his attorney made

464 CONSTITUTIONAL LAW FOR CRIMINAL JusTICE

a formal request for any such statements. Brady was sentenced to death. Court reversed, announcing what has become known as the Brady rule:

(T) he suppression by the prosecutio n of evidence favora ble to an a request vio lates due process w here the evidence is mate ri a l e ither -:::: = punishment, irrespective of the good faith or bad fait h of t he prosec utic- cip le . .. is not punishment of society for misdeeds of a prosecutor bu; _ of an unfair trial to the accused .. . . A prosecution that wit hholds e•. :::.;, demand of an accused which, if made a vailable, wou ld tend to exculP- ~-=' reduce the penalty helps shape . .. a proceeding that does not ca mper dards of justice, even though, as in the present case, his acti on is not · rc::: gu il e .. . "167

The duty established in Brady does not depend upon proof that acted in bad faith. The rule is premised on recognition that whenever :.;; ment withholds evidence that could change the outcome of a case, the -~ the verdict is compromised. Failure to comply with Brady created a near Timothy Me Veigh prosecution. Me Veigh was convicted of bombing City federal building and killing 168 people. Shortly before his schedule-c. '- ' . - the FBI discovered 3, 135 pages of documents that McVeigh 's lawye._ seen. The execution was postponed so that a judge could review the -.--~­ determine whether it contained anything that might have changed tb: Nothing was found and the execution was rescheduled .168 Had the evide::: - ~ McVeigh been less clear, the FBI's blunder could have cost the gove~­ viction that took millions of dollars and years to obtain, and left the fa victims without closure.

1. Types of Evidence That Must Be Disclosed

The constitutional duty to disclose extends to evidence that is favof2- accused and material either to guilt or to punishment. It is impossible to fc_ ...,. comprehensive list of evidence that must always be disclosed because this with the nature of the crime, the background (including criminal histories) c:,= ment witnesses, the prosecution 's theory of the case, and other factors. Fayo; dence includes evidence that may help establish the defendant's innocence, prosecution 's version of the events, or impeach the credibility ofkey pros nesses .169 Certainly, a defendant is entitled to know whether someone else fessed to the crime, whether a key prosecution witness has a criminal record o: :- a promise ofleniency, 170 or whether there are documented errors on police ratory reports 17 1 or negative results that indicate that the accused may not be= In Barbee v. Warden, 173 the prosecutor introduced the defendant 's revolver dence without informing the defense that the police had run ballistics and tests on the revolver and had learned that it was not the weapon used in the cr.. prosecutor failed to inform the defense because the prosecutor was unaware o"'"

TRIAL AND PUNISHMENT 465

ille Fourth Circuit reversed the defendant's conviction, holding that the prose- - responsible for disclosing this information to the defense because it was in

-- of the police.

Scope of the Disclosure Obligation

upreme Court has consistently broadened the scope of the prosecutor's dis- ligations. Today, it is settled law that the prosecutor is responsible for dis- evidence known to anyone assisting the prosecutor, including the police, 174

;: evidence is both favorable to the defense and material to guilt or punishment, -- of whether the defense has specifically requested disclosure. 175

ally, the prosecutor will contact police to learn whether any exculpatory an is known to the department. However, when the police know of informa-

ble to the defense, they should advise the prosecutor of its existence without be asked. Sometimes a harried prosecutor may neglect to ask for the police

-" can botch a prosecution by not taking the initiative to ensure that the pros- 3.ware of Brady material.

es v. Whitley, 176 the prosecution at a murder trial argued that the killer drove "here the murder occurred, killed the victim, and drove off in the victim's car, - own behind. The prosecutor showed the jury a blurry photo of the cars in = lot, which the prosecutor claimed substantiated this fact. However, he failed " that the police had recorded the license plate numbers of all the cars in the :when they took the photo, and that the defendant's car was not among them.

the prosecutor failed to disclose this information was that the police did not - e government's argument that prosecutors are not accountable for informa-

o the police, but not to them, fell on deaf ears. The Court held that prose- ;: a duty to find out whether the police have uncovered Brady material.

_ 'e of information in the hands of the police will be imputed to the prosecutor ;: of determining whether the government has discharged its Brady respon-

- ~ontrary rule, the Court stated, would "substitute the police for the prose- ;:Yen for the courts themselves, as the final arbiters of the government 's

_....__ - ensure fair trials." 177

e Responsibility to Preserve Evidence

- also under a second, closely related duty-the duty to preserve evidence. -first recognized in California v. Trombetta. 178 The prosecutor was unable to

th sample taken from the defendant at the time of his DUI arrest because :·ed it after receiving a positive result on an Intoxilyzer test. The Supreme - - destruction of evidence by the police constitutes a denial of due process

_ .dence (1) has an exculpatory value that is apparent to police at the time it - d (2) is of such a nature that it cannot be replaced by other reasonable

466 CoNSTITUTIONAL LAw FOR CRIMINAL JusTICE

available means. Neither requirement was met here. The breath sample had no~: exculpatory value because it had tested positive for intoxication. Since Intoxilyz are highly accurate, the possibility that a second test would produce a negative res slim. The defendant, moreover, could challenge the test result without the hiring an expert to testify about the margin of error on Intoxilyzer tests.

The Trombetta decision was clarified four years later in Arizona l: blood. 179 Police failed to refrigerate a semen sample taken from a chil mo lestation victim . Tests run on the semen sample were inconclusive because been left unrefrigerated too long. The defendant argued that he had been mis- identified, that had the semen sample been preserved he could have estab lis~= and that the police mishandling of the semen sample denied him due proce-:: Court began by noting that " [ w ]henever potentially exculpatory evidence is .-- nently lost, courts face the treacherous task of divining the import of materia:S contents are unknown and, very often, disputed. " This was not a case where- dence had an exculpatory value that was unmistakable to the police at the tiffie destroyed. It was a case where the most that could be said about the evidence it might have been useful to the defense. Where evidence lacks obvious ex value, a defendant has no remedy for its loss unless he can prove that th= :: destroyed the evidence in bad faith . Here, the semen sample was destroyed be::' investigation had focused on a particular suspect and at a time when the po no way of knowing whether it would inculpate or exculpate the person they- ally charged. Consequently, the most that could be said was that the poli~­ negligent in their handling of the semen sample. Defendants have no consri~ remedy for the negligent failure of police to preserve evidence that might h useful to them.

As things turned out, Youngblood was in fact innocent. He was rel eas;:-_ prison 15 years later when DNA testing, not available at the time of his trial, e that he did not commit the crime for which he had been convicted. 180 The ~.--, handling of the semen sample by the police caused a miscarriage of justice, eve::. it did not deprive Youngb lood of due process.

§ 9.13 Eighth Amendment Requirements for Punis .. LLJ.~

The Eighth Amendment, which applies to the states through the Fo~-· • Amendment, prohibits excessive fines and "cruel and unusual punishments .'' c: punishment has not always been practiced. There was a time in England when=. convicted of a crime could be burned at the stake, boiled in oil, or have his or h~ or ears cut off. Blackstone, in his Commentaries on the Law of England, pub- 1769, reported that for the crime of treason an Englishman might be dragg-~ gallows, hanged, cut down, disemboweled while still living and, finally, put to decapitation and quartering. 18 1 Public hangings, floggings, and cropping of still being practiced when our Constitution was adopted. 182 Thomas Jefferso~

TRIAL AND PUNISHMENT 467

_ · ghtened thinkers of his day, advocated castrating men found guilty of rape, or sodomy, and mutilating the faces of women found guilty of similar

-=-tlese recommendations, although barbaric by modem standards, were not _· radical back then. In deciding whether a punishment is cruel and unusual, ourt consider opinions prevalent when the Constitution was adopted or

-~=--' modem opinion? - this question is to answer it. The Court has repeatedly emphasized the -endment's "expansive and vital character"184 and its capacity for evolution-

-· The constitutional definition of"cruelty" embodies "contemporary stan- -ency,"186 and changes as "public opinion becomes enlightened."187 Should

e when enlightened public opinion has advanced to a point where the death :: longer acceptable to a majority of Americans, these attitudes will work - -o the Eighth Amendment, and the death penalty will be prohibited. Never-

this writing, that time has not yet arrived.

-Constitutionally Acceptable Punishments

::...ghth Amendment generally limits the kinds of punishments that may be :ines, prison terms, and executions carried out in a humane fashion . Other

· shment are certainly unusual in modem times and, when they involve --:: physical pain, humiliation, or degradation, are also cruel. Perpetual sur-

and forfeiture of citizenship, 189 for example, have been held constitutionally - punishments. So has conditioning a sex offender's early release on his

-~-....... - :o undergo castration. 190

:dinary punishments (i.e., fines, incarceration, and death) violate the Eighth -~--... - when they are disproportionately severe to the crimes for which they are

The Supreme Court has observed that " [i]t is a precept of justice that pun- - crime should be graduated and proportioned to [the] offense [charged]. " 192

_ · rooted in the language of the Eighth Amendment, which declares that - ~s [shall not be] imposed." ~ rtionality limitation has been applied most often to the death penalty. _ imposed only when the underlying offense involves the taking of a : It is regarded as too severe for crimes that do not involve the taking of a -~ h as rape.

::-;-erne Court has been reluctant to apply the proportionality principle to the - ·-on sentence, explaining: 194

- ~seriousness" of an offense or pattern of offenses in modern society is not __ -::::plane . Once the death penalty and other punishments different in kind _ ::· m p risonment have been put to one side, there remains little in the way

-- '9 a ndards for judging whether or not a life sentence imposed .. . for .. . __ ~ IICtions not involving "violence" violates the cruel-and-unusual punish-

- ~ .. o n of the Eighth Amendment . ... Whatever views may be entertained

468 CONSTITUTIONAL LAW FOR CRIMINAL JusTICE

regarding severity of punishment, whether one be li eves in its efficacy or its '-~­ ... these are pecu li arly questions of legislative policy. 195

The Supreme Court recently made a limited exception for juvenile offenders that juvenile offenders are less culpable and have a greater chance of rehabili adults, the Court ruled that life without parole is constitutionally excessive puni juvenile offenders convicted of nonhomicidal crimes. Such offenders must be aE opportunity to earn their release by demonstrating that they have matured and c

§ 9.15 -The Death Penalty

The death penalty has been the center of a stormy debate that has gone decades. There are conflicting views about the morality of putting a fell ow being to death, conflicting evidence about the effectiveness of this punish- deterring violent crimes, and the omnipresent specter of discovering, after the an innocent person has been executed. 19 7 However, the most serious and sta~ ­ best supported indictment of the death penalty is socioeconomic. It has beer: mented, time and again, that the death penalty is imposed disproportionately minorities and the poor.

None of these issu es is likely to be resolved soon. For now, the Supreme C chosen to err on the side of allowing the death penalty, but has limited the erG:: which the death penalty may be imposed, and has developed special procedures d..~ to ensure, to the greatest extent possible, that the decision to impose this penalty based on appropriate considerations and not motivated by passion or prejudice.

Figure 9.5 Requirements for Death Penalty Sentencing Laws

To be constitut ional, death pena lty sentencing laws must incorporate a ll six c; fol lowi ng safeguards:

l. Th e death penalty may be imposed only fo r crimes that involve the taki~ :: huma n life.

2. The sentencer must have the d iscretion to decide whethe·r th e d eath pe appropriate.

3. Sentencing discretion must be channeled by establ ishing statutory aggravc:- factors that must be present to warrant imposition of the death pena lty.

4. Defendants must be afforded an unrest ricted opport unity to offer evioe- that might convince the tribunal to show com p assion a nd w ithho ld th e c = penalty.

5. The trial must be conducted in two phases, w ith the sentencing pha se . =- separate from the gu ilt phase.

6. The death pena lty may not be imposed on offenders who are under the of 18, menta lly retarded, or crim ina lly insane .

TRIAL AND PUNISHM ENT 469

- ·mes for Which the Death Penalty May Be Imposed

- eath penalty may be imposed only for crimes that result, or that are intended m the taking of a human life. 198 The Supreme Court has repeatedly invalidated

- es that authorize the death penalty for crimes such as rape or kidnapping victim is not killed. 199 Unless a human life is taken, the Eighth Amendment

imposition of the death penalty.

cedures Required for Death-Eligible Crimes

·hen a human life is taken, the defendant may not be sentenced to death in an "0 mechanical fashion . The tribunal must have the discretion to decide whether

-tances surrounding this particular homicide were heinous enough to warrant ;>enalty and also whether the accused 's age, background, character, or other ~it appropriate to show mercy and spare him. This has not always been the law.

- -:.Ipreme Court's death penalty reforms began when it handed down the land- ~ of Furman v. Georgia. 20° Furman invalidated capital punishment laws around

The Court was disenchanted with the capital punishment sentencing proce- -="' at that time. These procedures conferred unguided discretion on sentencing

ecide whether to impose the death penalty. The result was random and illce, with the death penalty being imposed almost exclusively on minorities

r. The Furman Court ruled that unguided discretion to impose the death - constitutionally unacceptable.

resulted in a moratorium on the executions of death row prisoners. Chaos egislatures around the nation met for the purpose of remodeling their capital

... a=::::G laws. Because broad and unguided sentencing discretion had led to the death - " nfall, it was clear that this feature had to be removed from capital punish-

cing procedures if the death penalty was to be salvaged. Legislatures took two •:::::::rprc>acl!les. Some retained sentencing discretion but provided standards to guide ~~:::=::ng body in its decision to impose the death penalty, while others eliminated

· cretion entirely, making death the mandatory punishment for specified .., e knew what the Supreme Court's reaction to the new approaches would be.

- . the Supreme Court issued a number of opinions regarding the states' ; capital punishment sentencing procedures .201 It carefully selected the

_ i ew so that it could discuss all the various "dos and don 'ts" of capital pun- -encing. The following summarizes the law of capital punishment sentenc-

- "'Yolved since 1976.

Tribunal Must Have Discretion to Determine Whether ::Jeath Penalty Is Appropriate

~on's life is at stake, the Eighth Amendment demands individualized sen- - ·on. 202 Mandatory death penalty laws are unconstitutional because they treat _ victed of a designated offense, not as uniquely individual human beings,

470 CoNSTITUTIONAL LAw FOR CRIMINAL JusTicE

but as members of a faceless, undifferentiated mass to be subjected to the blind =-- of the [death] penalty."203 This treatment is incompatible with the Eighth Amen mandate of respect for human dignity. Thus, legislatures may not make death a mz:: .... punishment for any crime, even for the deliberate slaying of a police officer. 204

2. Sentencing Discretion Must Be Channeled by Establishing Statutory Aggravating Factors that Must Be Present to Warrant Imposition of the Death Penalty

Although sentencing discretion is essential, the Supreme Court recognize man v. Georgia that unguided sentencing discretion leads to arbitrary and applications of the death penalty. To minimize this risk, death penalty sentenc · must incorporate concrete, clear, and objective guidelines that focus the sen~ attention on factors accompanying the taking of a human life that make the de~r~ alty appropriate, and distinguish them from other cases involving the taking of a life for which death is not an appropriate penalty. 205 These factors are called agg: ing circumstances or aggravating factors . 206 The function of statutory aggravati.::= tors is to "narrow the class of persons eligible for the death penalty and ... reasc justify the imposition of a more severe sentence on certain offenders found guil:: same crime."207 Unless the sentencer finds the existence of one or more aggrn factors, the death penalty may not be imposed.

Aggravating factors must be specific enough to guide the tribunal's dis~-­ Aggravating factors typically mentioned in death penalty sentencing statutes i- the fact that the killing was accompanied by rape, performed for hire, or the vic ~ a police officer. In Godfrey v. Georgia, 208 the Supreme Court ruled that a statute rizing imposition of the death penalty upon a finding that the murder "was outrag::- or wantonly vile, horrible or inhuman in that it involved ... depravity of min aggravated battery to the victim" did not furnish an adequate standard for diffe-'='- ing between murderers who deserved to die and those who should be spared, these factors normally accompany every intentional homicide. The statute fa1.:: furnish the type of concrete differentiating standards the Constitution demands ~­ a person convicted of homicide can be put to death.

3. Defendants Facing the Death Penalty Must Be Afforded an Unrestricted Opportunity to Offer Evidence That Might Convince the Tribunal to Show Mercy

The fact that the tribunal finds an aggravating circumstance does not me it must impose the death penalty; it means that the tribunal has the authority to - However, mercy still remains an option. To this end, sentencing procedures - afford the accused an opportunity to establish the existence of factors that mak= deserving of mercy. These factors are sometimes called mitigating fac t

TRIAL AND PUNISHMENT 471

-tances. Mitigating circumstances include such things as the defendant's = cx:l d character, lack of a criminal record, sub-average intellectual functioning,

;: childhood, or any other factor that might influence the tribunal to show mercy .:rre him . 209 :...ockett v. Ohio,210 the Supreme Court struck down a death penalty statute that -~ the sentencing body, upon finding that the murder was accompanied by an

· g circumstance, to impose the death penalty unless it found that the victim had = the offense, the crime resulted from duress, or the accused was suffering from

ess. The Court ruled that this statute unduly limited the sentencer's discretion ;:ompassion. For a death sentence to be valid under the Eighth Amendment, the

-~- must be permitted to hear and consider all possible mitigating evidence that -ed elects to offer in the hopes of escaping the death penalty .

• e Tribunal's Consideration of Guilt and Sentencing ust Be Kept Separate

_-egg v. Georgia, 211 the Supreme Court approved Georgia's approach to capital ~ and that approach has become the prototype for the laws of other jurisdic-

nly did the Georgia approach list aggravating and mitigating circumstances, _ a bifurcated proceeding. The trial was divided into two phases- a guilt .; separate sentencing phase. During the first phase, the issue before the tri-

mer the accused committed the crime. If the guilt phase results in a con- " rrial enters a second phase, during which the tribunal hears testimony - e appropriateness of the death penalty. Separating the sentencing phase

= - phase is constitutionally necessary because much evidence relevant to ropriate punishment, such as the accused's character and prior criminal

-.-o}evant to his guilt of the crimes for which he is on trial, and would be - · ial if introduced at the guilt phase of the trial.

:: ders Who Are Ineligible for the Death Penalty

penalty may be imposed only on offenders "whose extreme culpability - st deserving of execution. "'212 Three categories of offenders- persons

__ f 18 at the time of the crime,213 the mentally retarded, 214 and the crimi- -have been excluded from death penalty eligibility on this basis.

· g Problems of Unfairness in the Application ea th Penalty

~~- Court's sentencing reforms were an attempt to eliminate arbitrary sen- y focusing the sentencer's attention on factors that would give them a

:aaking distinctions between offenders, separating those who deserved

472 CoNSTITUTIONAL LAw FOR CRIMINAL JusTicE

the death penalty from those who deserved to be spared. These reforms have n-- all that was hoped for them. It remains true today that racial minorities and tt.e much more likely than others to receive the death penalty. The Supreme Court has edged and lamented this fact. Still, it holds that the death penalty is constitutio

In McCleskey v. Kemp / 16 McCleskey, an African-American man sen- death by a Georgia jury for killing a white police officer during a robb ery. _ tistical evidence to drive home how little the Supreme Court's reforms had g:.- accomplished. McCleskey 's statistics showed that African-American de::.. charged with killing white victims were four times more likely than anyo~= receive the death penalty. McCleskey contended that these statistics de that racial considerations continued to play a role in Georgia's capital p"- ·,..- -- sentencing and that, as a consequence, the Georgia system still violated Amendment. This was a serious challenge-a challenge that, as the Co nized, went to the legitimacy of permitting juries in a multiracial society -

who JIIJJJ ftCtiJit t!Je deat!J }JtJJalty A slJaJ]Jly divided SUjJreme Court (5:4 affirm McCleskey 's sentence in an opinion that admitted with sadness that the system is still imperfect, but apologized that it was the best the Supreme Co do. Mr. Justice Powell, who wrote the majority opinion, proclaimed that the:-= "no perfect procedure for deciding in which cases governmental authority s used to impose death ."217

§ 9.16 -Eighth Amendment Protection Inside Prison

Eighth Amendment protection does not end when a sentence is imposed. have a right to be free from cruel and inhumane treatment during their confin However, courts take the realities of prison life into account in applying Amendment. Harsh conditions and rough disciplinary treatment reach Eighth .-. ment proportions only when they lack penological justification and involve wa-- unnecessary infliction of pain. 219 Despite this low standard, correctional offi~ officials are sued more often than any other criminal justice professionals . r: not mean they are less competent. Prisoners, who have years on their hands else to do, file thousands of lawsuits each year claiming that their Eighth Am rights have been violated. 220

A. Sadistic Use of Force Against Inmates

The Eighth Amendment, which controls use of force by prison guards, · standard that is less demanding than the Fourth Amendment, which governs force in making an arrest. 221 The Eighth Amendment is violated only when e"._ force is used with a sadistic intent to inflict injury.

Hudson v. McMillian 222 and Whitley v. Albers 22 3 illustrate applicati o- · Eighth Amendment inside prisons. In Hudson , prison guards gratuitously p

TRIAL AND PUNISHMENT 473

-"'in the mouth, eyes, chest, and stomach on the way to the penitentiary's admin- --e lockdown. The Supreme Court held that the prisoner's Eighth Amendment . -ere violated, even though he was not seriously injured, because the punches ~inistered sadistically and served no penological purpose. In Whitley v. Albers,

-------~~,~officers shot an inmate while attempting to quell a cellblock disturbance. The _ e Court ruled that the inmate's Eighth Amendment rights were not violated, - ough he was not one of the rioters, because the prison guards used the force in

ith belief that it was necessary to restore order.

Amendment Standards for Treatment of Prisoners

uct Regulated by the Eighth dment

e to attend to a prisoner's basic -on needs

Mental State Necessary to Incur Liability

Sadistic intent to injure the prisoner.

Deliberate ind ifference in the face of awareness that a prisoner's basic human needs are not being met.

Deliberate Indifference to an Inmate's Basic Human Needs

:orrectional officials also have a constitutional duty to provide for an inmate's :: human needs." This duty arises because the government has stripped the pris- f ability to provide for his/her own needs. 224 The Eighth Amendment, therefore,

ses a corresponding duty on the government. _ prisoner's "basic human needs" are sparse. Prisoners have a constitutional enti-

t to minimally decent conditions of habitation,225 safety from attack, care for .:.S medical needs,226 and little more. They are not entitled to education, entertain- - or any of the other amenities oflife that people who are not incarcerated enjoy. 227

- shness of prison life has penological value. It reinforces the deterrent goal of - 1 punishment. -=-ailure to provide for an inmate's basic human needs constitutes cruel and unusual

...__->--'Jlllent only when it is accompanied by a culpable mental state described as "delib- ~ :ndifference." This mental state requires proof that prison officials actually knew :_disregarded an excessive risk to an inmate's health or safety. 228

Methods of Execution

- e ban on cruel and unusual punishment also applies to the method of execution. _ g was the predominant method used during the nineteenth century and electrocu-

ughout most of the twentieth. Lethal injections were introduced toward the end of rury and are now used in all32 jurisdictions that still impose the death penalty.

- e standard lethal injection method of execution employs a combination of three _ The first drug renders the patient unconscious, the second causes paralysis and

474 CONSTITUTIONAL LAW FOR CRIMINAL JusTICE

stops breathing, and the third brings on a cardiac arrest. This combination. . administered, leads to a swift and relatively painless death. However, signifi can result if the drugs used are not effective or are not properly administered. - of botched executions is exacerbated by the fact that physicians are ethically-- ~-~ from assisting in the taking of a human life.

Executions carried out using the standard lethal injection combination a\ 2008 were upheld as constitutionally acceptable in Baze v. Rees. 229 HoweY~ drugs are no longer available because manufacturers refused to sell them u once they became aware of their intended use. The result has been several :- executions in which prisoners suffered agonizing deaths. 230 Executions using drugs are on hold in a number of states, making the future of the lethal injection of execution uncertain.231

§ 9.17 Summary and Practical Suggestions

This chapter examined a variety of constitutional safeguards designed to - fair trials and humane punishments. These safeguards include the Fifth Am~ prohibition of double jeopardy, the Sixth Amendment right to a speedy and pun~ before an impartial jury, the Sixth Amendment right to confront adverse witnes...~ the Eighth Amendment ban on cruel and unusual punishments .

A. Double Jeopardy The double jeopardy clause prevents the government from trying or punisl-

accused person more than once for the same offense. Three conditions must c in order to have protection against reprosecution: (1) an earlier prosecution mus- progressed at least to the point of jeopardy attachment, (2) the subsequent prose_ must have involved the "same offense," and (3) both prosecutions must han~ - brought by the same government entity.

In jury trials, jeopardy attaches , so as to bar reprosecution for the same o= when the jury is empaneled, and in bench trials when the first witness has been _ and the judge begins taking testimony. Nevertheless, there are three instances in an accused can be retried fm the same offense even though the first trial has proc= beyond the jeopardy attachment point. Retrial is permissible when: (1) the d~· requests the declaration of a mistrial, (2) factors beyond either side's control----s::; a deadlocked jury-prevent a verdict from being reached, and (3) the defen convicted, appeals, and the conviction is reversed.

When new charges are brought against a defendant who has previously tried for the same underlying conduct, the court must decide whether the new c represent the same or different offense. There are two tests used to determine w~­ prosecutions brought under different sections of the penal code involve the - offense. " The Blockburger ("same elements"\ t~~'-~ '«\\\c:.,\\ \'b ~'b't~ \l\ "\~~~1<a\ t our: