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Accuracy: - Correct results are the goal of the criminal justice system. There is a high standard of proof to protect the defendants from wrongful adjudication. Sometimes there is no way to know if justice is actually being served. Ex: defendant could be of bad character but maybe innocent and there are no witnesses how do you know whether to prosecute? There are so many factors that go into accuracy including: right to counsel, impartial jury, public trials, and defendant’s right to call witnesses.
Fairness: - What constitutes fair? Equality Limited-Government Provisions: - The bill of rights limits the ability of the government to interfere with the people (to protect us from a central government). - The fifth amendment is what truly protects the citizenry. Efficiency: - Balance between speedy trial and the rights of the party, there has been some damage to the system because the Judge wants to clear cases from his calendar so it may gloss over too many cases it may lead to conviction or release of defendants due to the need to clear the cases. Plea Bargaining really speeds up the process, but is this justice if the defendant pleads guilty just to hedge his/her chances? Without plea-bargaining the system would bog down due to the amount of time needed to try all the cases.
PRETRIAL RELEASE: (764-774)
1. System begins at arrest and filing of the complaint. 2. After arrest a hearing is held pertaining to bail (arraignment) [in lesser crimes there is no hearing, the police release the defendant with a set bail]. This is an issue of freedom. They set the conditions of containment. BAIL Ways to get people out of jail: 1. Police let you out on bail or with a citation 2. Release on recognizance (sign a certification to show up again) 3. Supervised or Unsupervised Release (sometimes the defendant is required to get treatment) 4. Unsecured bond on failure of defendant to show; only applies if defendant fails to show 5. Deposit bond (10% program): defendant can get out by posting 10% of the bail amount but gets the money back if they show up in court. 6. Full bond: secured; generally you go to a bailbondsman and he will keep the 10% and he basically guarantees that you will show *Stack v. Boyle p.769: - Excessive bail under the 8th amend. - Court finds that there is no right to pre-trial release. - Your right to release is conditioned upon assurance that you will not flea the jurisdiction and will show up in court for your hearings. - Therefore, bail can only be so high as to provide adequate assurance that the defendant will show for trial. If a bail amount which is greater than is usually fixed for a crime is applied evidence should be produced to support that unusually high bail. The Federal Reform Act of 1984 (note 8 p.773) - Provides that a judicial officer may not impose a financial condition that results in the pretrial detention of that person. This is to force the judge to use the preventative detention provisions of the statute. There is racism in the system, because the whites make bail far more often and those that make bail are less often convicted because if in jail at time of trial it seems as though you are already guilty.
Court holds that preventative detention under the Bail Reform Act is regulatory and not punitive (detention cannot be forever due to the speedy trial statute which requires a trial within 180 days of indictment). . in appropriate circumstances. there are factors for determining whether bail can be denied: nature and seriousness of the charges. Trentonian Factor: Appellate Judges do not reverse high bail because they don’t want to be put in the Newspaper and have the perp injure someone else.Therefore if the goal is to protect community safety. . Bail Reform Act of 1982 §3142(c)(2) p. Gillespie p. a sexual predator is evaluated and the court can be persuaded that defendant will be a continuing danger. . outweigh an individual’s liberty interest. .However.Public Defender does not have to be supplied at the bail hearing. 50 of supplement: “the judicial officer may not impose a financial condition that results in the pretrial detention of the person.Judges might set bail high to prevent perpetrator from fleeing or being a danger to society. .10 of the supplement: . the government’s regulatory interest in community safety can.PREVENTIVE DETENTION *United States v.Furthermore. .” Involuntary Civil Commitment: .If acquitted by reason of insanity person is put in a mental institution for upwards of the maximum sentence for the crime. Salerno p.No constitutional right to bail. Court can extend the commitment indefinitely. Bail Reform Act etc. In their case they are more likely to detain in capital cases because the defendant’s are more likely to flee. .This is not classified as punishment. or be seen as soft to the public in big cases. you can be detained and it is not considered excessive. . . the arrestee’s background and characteristics.” Sexual Predator Laws: . then preventative detention is fine.Burden to prove need for civil commitment is “danger to self or others.This is seen as ok because it is regulatory and not punishment . and the nature and seriousness of the danger posed by the suspect’s release.States are not subject to the Bail Reform Act. because they see bail as part of the cost of doing business.This can be a problem because the defendant can hurt his case if he speaks at the hearing.At the end of a sentence. substantiality of the Government’s evidence.774: . *Rothgery v. However it should not be used to ensure that defendant shows at trial. It is for rehabilitation of the person’s mental health. . This is also often the case with drug dealers.
Standards of the Bar p. Prosecutor doesn’t have to bring all charges that are supported by the evidence. the defendant is not entitled to discovery on the selective prosecution issue. State level is different. or protecting someone. . which is that the Government declined to prosecute similarly situated suspects of other races. Arrests are made first. They are kept secret.PROSECUTORIAL DISCRETION IN CHARGING: P. . Domestic Violence Crimes tough for the prosecutor to charge.Reasons to bring all charges: To get the defendant to plea bargain or in case the prosecutor does not think the greater charges will garner convictions. or feels that they are incompetent. Cases which the prosecutor decides not to prosecute do not have arrests.He wanted discovery on the issue. He may do so where he wants to take pressure off a prosecutor. however. 793 At the federal level.The prosecutor can bring a high number of charges but the judge will not sentence on them all.The dissent. The standards are in no way exhaustive and are not always applicable. . Where witness refuses to testify. 3. . downgrade the crime and send it to municipal court Attorney General: . dismiss the case if it is sucks. corrupt. .797: 1. Cont.Rationale: The majority is concerned with efficiency because they feel that freely allowing discovery in these matters will bog down the system. the office. Armstrong p. This is because the wife often doesn’t want them to and will refuse to testify.AG can take over any case and can even take over a whole office.Has supervisory powers over the prosecutors even though the prosecutors are appointed by the governor. the prosecutor chooses which cases to prosecute and then arrest warrants are issued for those defendants. 2. Prosecutor should not bring charges absent probable cause or sufficient admissible evidence to support conviction. . then a complaint is issued and charges are rendered. or 3.Therefore. . 4. *United States v. (State is far more public whereas fed is more private) The state prosecutor can screen cases in 3 ways: 1. Merger: All similar crimes can merger the lesser offenses into the larger offenses.Defendant claimed to be selectively prosecuted because he was black.Supreme Court held that the defendant failed to establish a threshold showing. Prosecutor should not bring or seek charges greater in number or degree than can reasonably be supported at trial or to fairly reflect gravity of offense. is concerned with fairness and felt that the district court did not abuse its discretion by allowing discovery.800: . . like the case and go for an indictment 2. 5. Prosecutor should use subpoena power to compel. .
812 Preliminary hearings are basically a chance for the defendant to look at the prosecutor’s charging documents. That way.808: . . .Courts expect greater probable cause where no warrant was issued for the arrest.Court held that counsel would have affected the trial so counsel is necessary for preliminary hearings. .Defendant claims that this was unconstitutional.* Blackledge v. . Alabama p. JUDICIAL SCREENING – PRELIMINARY HEARINGS: p.812: .Prosecutor brought charges for a harsher penalty after the defendant appealed his conviction. Perry p. the Judge will dismiss it and take it off the prosecutor’s hands without him having to take blame for it. In most states the prosecutor must have notice of a preliminary hearing. NOTES: .The Supreme Court held that the Prosecutor has a right to bring charges for an increased punishment but not in order to punish defendants for appealing their convictions nor could the prosecutor bring greater charges in order to discourage appeals. Therefore. They are also to screen cases *Cleman v. If the case is not good. which would make the hearing moot. which is ordered by a Judge.Court states there has to be an analysis of: o Whether there was a chance for substantial prejudice and o Whether presence of counsel would avoid that prejudice. .Counsel not provided for defendant at the preliminary hearing. the prosecutor may want to let it get to the preliminary hearing. a prosecutor would try to avoid this by indicting the defendant.
*US v. the rule for denying privilege is that it must be perfectly clear.Defendant was convicted of contempt for not answering questions about which he claimed his 5th amend privilege.Therefore. show up and bring stuff (duces tecum) *Hoffman v. Imposing such would run counter to the traditional function of the grand jury (and it is not their job to consider exculpatory evidence). .The dissent however felt that the prosecutor has to be fair at the grand jury and should provide the info.Prosecutor failed to disclose substantial exculpatory evidence to the grand jury. location of evidence 3. They are chosen the same way that jurors are chosen for voire dire and there is more leeway for excusing them because it can be a 24 month process. .Only issue to be decided at grand jury is probable cause and not to decide guilt.grand jury problems make no difference once a verdict has come down from the real jury and the mistake is harmless beyond a reasonable doubt PREPARING FOR ADJUDICATION 5th Amendment privilege against self-incrimination is the most important privilege! Privilege can be used by a defendant who claims his innocence as well as the defendant who is guilty. . that the witness is mistaken.“To sustain the privilege it need only be evident from the implications of the question in the setting in which it is asked. and that the answers cannot possibly have such tendency to incriminate. that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result. identification of evidence . Williams p824: .Court said no supervisory authority to force prosecutor to disclose.838: . from a careful consideration of all the circumstances in the case. . Notes: . Supreme Court reversed holding that the privilege applies to answers that would support a conviction or provide a link in the chain of evidence. . to show up and talk(testify) 2. Production could be testimonial in 3 circumstances: 1. 837-849 If the prosecutor does a good enough job indoctrinating the grand jury they should get whatever they want.The contempt conviction was upheld on appeal.Court holds that prosecutor was not required to provide the grand jury with the exculpatory evidence.” . . .GRAND JURY SCREENING: 818-834. 2 types of subpoenas: 1.Rules of evidence for hearsay do not apply to grand jury. Grand Jury is a good way to screen cases because you get a good feel from the jury preliminarily. existence of evidence 2. US p.
the documents exist (government may not have known about their existence 2. there is no privilege for documents. use and fruits immunity: transaction not immunized but testimony and anything that comes from that testimony (evidence as well) is immunized (so can still prosecute for that crime just cannot use that evidence or testimony). US p. transactional immunity: covers all convictions related to the testimony. It is important for the prosecutor to build his case and collect the evidence before immunizing the witness. 844: Court holds that use immunity is constitutional The immunities overlap both state and federal jurisdictions and the immunized testimony cannot be used for any reason. 2 types of immunity: 1. which were voluntarily created. 2. including impeachment (with the exception of perjury) .Testimonial evidence requires a communicative act.Fisher v. US .Also. says “these are the records I believe you asked for” Immunity: . location of the evidence (possession/control of the documents) 3. Compulsion of documents: .5th amendment only applies to testimonial acts not including participating in a lineup or submitting a blood sample. Production Issue: The act of turning over documents can convey three things 1. . *Kastigar v.To get around the 5th amendment privilege the prosecutor can grant immunity. .5th amendment doesn’t apply because no one compelled you to make them. .Government wanted tax documents and the court found that they were not involuntarily produced and that the incrimination happens at the creation of the documents therefore all voluntarily made documents are discoverable.
*Irivn v.850 One view on the issue is to paper the government to death. facilitates plea bargaining MOTION TO SUPPRESS . Of course it may have the opposite effect by pissing off the prosecutor and limiting the client’s access to a good plea bargain.The government tried to use this testimony against him at trial and the court found that the testimony from the hearing cannot be used against you.” Foreign Jury: . Good idea to change venue when defendant feels he cannot get an impartial jury. the prosecutor may offer a plea or to dismiss to avoid all the work). 11 hijacker case court held that he was going to be prejudiced in every jurisdiction in the US so no need to move it from Washington DC . or 2.Therefore. 3 Goals of Pretrial Motion Practice: 1. . .However this is not possible at the federal level because the districts are too large.856: jurors are impartial if they can lay aside any impressions they had formed “and render a verdict based on the evidence in court. prevents prejudicing the jury with inadmissible testimony 3. Rule 21(a) motion to change venue based upon prejudice Rule 21(b) motion to change venue based upon convenience of the parties Note 7 p.Rationale: You should not have to sacrifice one constitutional right for another. aside from for impeachment. smooth and efficient trials 2. this approach may turn up some interesting evidence or may lock in the witnesses testimony.857: Two Pronged Inquiry 1. a person has standing to bring a motion to suppress when their “legitimate expectation of privacy was violated”. Furthermore. . i.e.PRETRIAL MOTIONS: P. Dowd p. The jury selection process of which defendant complains permits an inference of actual prejudice. .Simmons: Police seized D suitcase from a friend’s house and he asserted his right to privacy in testimony regarding a motion to suppress.In the states you can request a foreign jury as an alternative to a motion for change of venue (they bring in jurors from another county). MOTION FOR CHANGE OF VENUE Venue is where the crime occurred. Murphy Test p. Whether the setting of the trial was inherently prejudicial.858: Sept. file everything for which you have a colorable claim (if the case is not very strong or important.
state complied with both Agurs and Brady. when the defense requests materials it triggers a reciprocal obligation so you should not ask for anything you don’t want to give up [state can’t ask for things you don’t ask for]) *Brady v.Dissent did not like the “Bad Faith” rule because it is almost impossible to prove and does not create a bright line. as opposed to the process. .Defendant argued that this rule forced him to testify against himself in violation of the 5th and 14th amendments.” is used. Vilardi p.Court held that alibis are not compelled and the statute did not affect his decision to claim it therefore the statute does not violate the 5th amendment. *Williams v.Court held that unless bad faith on part of the police. (there is one caveat. Youngblood p. *AZ v.DISCOVERY: p. . . Puts burden on reviewing court to look at entire trial to see if the exculpatory evidence would have affected the verdict (no longer a constitutional violation) *US v.Holds that in a Brady case involving exculpatory evidence the Agurs standard of whether “there is a reasonable probability that.Police failed to preserve potentially exculpatory bodily fluids. .863: Upon request. Bagley p.Rationale: Court found that the state did not rely on the missing materials and that the defense had other means of proving innocence.FL rule forced defendants to offer any alibi before the trial or the evidence was suppressed and in return the prosecution had to inform defendant of any witnesses to be used to rebut. . o Bagley creates an incentive for the defense to look hard for exculpatory evidence because there is no longer a guaranteed do-over. failure to preserve potentially exculpatory evidence doesn’t constitute a denial of due process.883: . *People v.874: .Rationale: The test moves focus to the result.864: NY case that rejects the Bagley view and accepts the Brady view. . Plus. *US v. the government must provide all exculpatory evidence or else they are violating due process. . MD p. FL p. .This thereby says that failure to disclose exculpatory evidence can be excusable. o Brady test is far more stringent with more for the prosecutor to lose because the defendant would be guaranteed a do-over.863: Obvious exculpatory evidence creates duty to disclose. Agurs p. had the evidence been disclosed to the defense.865: (KILLS BRADY) . the result of the proceeding would have been different. 858-890 When requesting discovery ask for everything you want because you want to make the state defend its rights not to share.
Reldan p.Offenses may be joined if of similar character.with jury or . *State v.Man charged with the murder of 2 women and the cases were joined.(b) Court can ask prosecution to hear in camera any statement by the defendant that prosecution wishes to use as evidence There is potential for bias in joinder: .(a) Counts or defendants can be severed if there will be prejudice to a defendant or the prosecution.The more charges the more likely the conviction and joinder effect was greater where case was weak.Court establishes categories to define types of prejudice: o When defendant may become embarrassed or confounded in presenting separate defenses o When Jury may use the evidence of one of the crimes to infer guilt in the other o When Jury may cumulate the evidence of the various crimes and find guilty where if severed they would not have found guilt . based on same transaction or part of same scheme or plan.(b) Defendants can be joined if all took part in the same action not all must be charges in all counts Rule 14 Fed Rules of Crim Pro: SEVERANCE . . . . Defendant wants to sever because he feels it is prejudicial.“where there is smoke there is fire” theory and jury might confuse evidence and wrongly construe . .892: .Court found that joinder was not prejudicial because evidence of one homicide would not be evidence of the other.JOINDER AND SEVERANCE: Rule 8(a) of Fed Rules of Crim Pro: JOINDER .
Court found that he was not denied a speedy trial because he was waiting for result of his friends trial to use the result in his own trial.There is a problem with speedy trial doctrine. negligence) will weigh against government [however the delay may be legitimate such as a missing witness] 3. Pre-Indictment Delay: . reasons for delay (neutral dealy (back log. US: p 909: Affirms remedy of dismissal with prejudice when a speedy trial violation is found.SPEEDY TRIAL: 897-913 Guaranteed by the 6th Amendment.Court rejects the demand waiver rule which would require a defendant to request a speedy trial because it goes against waiver law. *Barker v. Marion .898: . if not screaming then not hurt by it] 4. On one hand you want to be fair and not delay trial for long on the other hand you do not want to set criminals free due to delay.In the federal system the government has 6 months to try you . prejudice to the defendant Factors 3 and 4 are the most important. Undue delay requires dismissal with prejudice. So court adopts a 4 factor balancing test: 1.Both sides usually agree to postpone the arraignment until right before trial to prevent triggering of the statute. *Strunk v. .” . length of delay (must have some sort of triggering mechanism) 2.US v.But it often doesn’t arise because both sides want to delay .A Due Process violation would “if it were shown at trial that the pre-indictment delay caused substantial prejudice to defendant’s rights to a fair trial and that the delay was an intentional device to gain tactical advantage over the accused. defendants responsibility to assert his rights [theory is that is the defendant was being hurt by the delay he would be screaming about it. Wingo p. Federal Speedy Trial Act: .
Illinois p. Wainwright p. . . The court feels that because there is no denial of access because the record is already developed and the appeal is at the discretion of the court.Court held that this was not ineffective assistance of counsel. *Douglas v. a misdemeanor.Equal protection was never cited in the case but it appears to be the basis for the decision. Whiteside p. and there was a bench trial.931: Court held that in a criminal case the assistance of counsel is required to satisfy the 6th amendment.930: Knowledge standard required to determine whether client will perjure himself.938: . .951: picks up where Douglas left off.6th amendment was not applied in Douglas because 6th only deals with criminal prosecution. When appealing Guilty Plea or Nolo Contendre: The case falls in the ambit of Douglas and a lawyer is required for the first appeal.Defendant wanted to commit perjury and lawyer knew and threatened to withdraw if defendant did so.Court feels that failure to appoint counsel on first appeal is discriminatory because in CA everyone gets case looked at on first appeal. Brady p.Defendant appealed for lack of counsel.Defendant was indigent and convicted.He argued that Argersinger requires appointment of counsel whenever there is a punishment of imprisonment. Overturned by Gideon. Supreme Court holds that counsel is not necessary because jury trial not required for petty offenses (6 month prison term or less).946: . He had appointed counsel and he wanted to appeal.931: Defendant was indigent and couldn’t handle their own case.Harlan in the dissent says cannot be equal protection because it would mean that Gideon was wrong. *Gideon v. .Furthermore.924: . . . . CA p. . that the indigent is not required to be given counsel.Court finds if defendant will be sentenced with imprisonment then the right to counsel arises. (for capital cases) *Betts v.Note: A suspended sentence still leads to a right to counsel. Moffit p.DEFENSE ETHICS: 914-931 Note 1 p. . . *Ross v. . (overturns Brady) *Scott v.Defendant charged with theft.Case holds that an indigent is not required to have counsel for discretionary appeals to the Supreme Court. . Alabama p. Note 4 p. Rationale that the affluent would have a much greater chance of winning appeal because they could afford counsel. there is no Due Process argument because DP only deals with a fair trial.931: counsel need not be appointed in all cases and left the decision to the discretion of the trial court where the standard would be failure to appoint counsel would be offensive to the common and fundamental ideas of fairness. . court found that to satisfy due process defendant required counsel. Zealous advocacy… *Nix v.Defendant moved for ineffective assistance of counsel.919: Justice White is almost advocating an anything goes attitude for the defense counsel with exceptions for illegal acts such as making up evidence or to encourage lying. RIGHT TO APPOINTED COUNSEL: 931-956 *Powell v.
966: Autonomy Right diminishes post-trial therefore upon appeal court can appoint counsel (no right to appeal so out of the 6th amendment context) Note 2 p.973: • Benchmark for judging any claim for ineffective assistance of counsel is whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. . (counsel’s errors deprived the defendant of a fair trial). Edwards. Either because of ethics or would not sit well with the bar.957: . • 2 components to the defendant’s argument must be proved: o (1) the defendant must show that counsel’s performance was deficient (including errors so serious that counsel was not functioning as counsel guaranteed by the 6th amendment) o (2) the defendant must show that the deficient performance prejudiced the defense.Question of whether the defendant can be allowed to proceed without counsel when he knowingly and intelligently elects to do so. Note 9 p.992: Freedom to choose counsel does not apply to appointed counsel. 11 of supplement for Indiana v.However. Note 5 p. Note 5 p. • Not guaranteed perfect assistance just acceptable assistance. . Now about fair result where before it was about fair process. Slappy Note 11C p.1004: What happens where the appointed counsel knew the case would lose so purposely acted ineffectively by doing nothing to get defendant new trial? Appellate court suggested in these circumstances that the judge should ask the defendant if he was satisfied with the attorney in attempt to get him to waive his ineffective assistance of counsel claim.Defendant should be made aware of the potential problems so they can make a wise choice.967: assistance of counsel is default position and the court will not ask if defendant wants to represent himself. Note 4 p. . Bad tactics are not reviewable because not all tactics work out. it is a test to see if the counsel prejudiced the defendant. if D is disruptive in his own representation than his self representation can be terminated.RIGHT OF SELF-REPRESENTATION: 957-73 *Faretta v. . It’s up to the defendant to request to represent himself.968: competency to waive counsel. . • SO basically this is not a performance test. Washington p. CA p.966: many people who represent themselves have an agenda and don’t want counsel because they won’t go as far as the defendant wants them to.Court holds that the right to make your own defense is in the 6th amendment by implication. INEFFECTIVE ASSISTANCE OF COUNSEL: 973-1004 *Strickland v. See p.Dissent: attacks the historical analysis because the constitutional argument is lacking because there is not express writing to grant this right. Morris v. o By stating that all rights go to the accused not to the lawyer of the accused the 6th amendment provides the right of the defendant to make own defense.
Where a case goes to trial. o Collateral consequences of the plea do not have to be explained by the prosecutor or the Judge (such as immigration law which may require deportation if convicted or meghan’s law) *North Carolina v. changes in the law do not invalidate pleas. The statute was invalidated and the defendant appealed his plea.Defendant stated that he was pleading guilty to avoid the death sentence not because he was guilty.“Compromise better than conflict.1012: Judge Easterbrook thinks plea bargaining is best because it is good for both sides. (plus you don’t want to deny the public the right to know if actually guilty. Wired Pleas: Where one plea is contingent on another person’s plea is ok so long as the cases are connected somehow. knowing and intelligent *Brady v.Defendant was fully aware of the consequences and he met classic waiver requirements. Where a case has a lot of public notoriety it may be hard to plea bargain because a plea can give the appearance of not guilty. US p. . . Plea vs.Voluntary.1017: .PLEA BARGAINING AND GUILTY PLEAS: 1017-34 Fed Rule of Crim Pro 11 purtains to Pleas Note 1 p. Holding: the Judge can accept a guilty plea if the facts seem to negate innocence even if the defendant professed his innocence during his guilty plea.” Note 3 p. Furthermore. the judge wants to seem firm on crime so they give harsher sentences because it is more public.Defendant pled guilty to avoid the implementation of a statute which allows the jury to recommend the death penalty.1011: there would be more trials without pleas which the author thinks may bring more reliable results. . CHARACTERISTICS OF A VALID GUILTY PLEA: .Supreme Court upheld the plea because he was sufficiently aware of his circumstances and he made his choice voluntarily with competent counsel.Defendant was then give the max sentence of 30 years and he later sought post conviction relief. .1029: .) Note 2 p. According to Fed R Crim Pro 11: Judicial participation in plea bargaining is not supposed to happen.Defendant must know what they are giving up in order to plead guilty.Defendant must know what they are pleading guilty to. .1022: Yates who drowned her children could not assert Jackson if the jury recommended the death penalty because Yates involved a plea and Jackson involved a statute.1012: most defendants plead because they think it will lead to a more lenient sentence. . which is often the case. Cont. . Alford p. Statute: Note 3 p.
A new prosecutor was assigned to the case and he recommended a max sentence. .In order to satisfy the prejudice requirement of ineffective assistance of counsel for a plea bargain.Issue: Can the prosecutor threaten to bring more charges to coerce the defendant into taking the deal? .Dissent would eliminate the ability for vindictiveness by making the prosecutors show all charges to the defendant and attorney. BREAKING THE DEAL: *Santobello v.Remanded with 2 options: re-sentence with new Judge or allow defendant to withdraw the plea. The 6th circuit ended up reversing on Blackledge grounds. Supreme Court held that Blackledge didn’t apply. o In Mabry. plea only has to be knowing and intelligent. a broken deal was not a problem because the defendant accepted a later deal.to control the communication of the facts and prevent the defendant from saying something he will regret.1034: . . The judge does not have to accept every guilty plea and a criminal defendant doesn’t have a constitutional right to have their plea accepted.’ But in the ‘give-and-take’ of plea bargaining.Supreme Court held that plea promises must be fulfilled and there is no harmless error because no way to tell what effect the recommendation had on Judge.Defendant agreed to plea bargain in which prosecutor would make no sentence recommendation.Factual basis for the plea is given under oath therefore. . it may be harder for the defendant to talk to the Judge than his own attorney.Due process was most likely the constitutional issue because the defendant was denied the benefit of his bargain and was unknowing. .” . .Furthermore. the defendant must show that there is a reasonable probability that but for counsel’s errors. . .Can there be ineffective assistance of counsel in the plea stage? YES . and for an Agent of the State to pursue a course of action whose objective is to penalize a person’s reliance on his legal rights is ‘patently unconstitutional. Note 4 p. he would not have pleaded guilty and would have insisted on going to trial. the defense attorney should do the questioning not the Judge .State Appeals said it was fine. Purpose of Bordenkircher and Blackledge is to prevent vindictiveness by the prosecutor.1042: . .Defendant objected but after discussions with the Judge it became clear that the recommendation had no effect and the judge would have given max anyway. .“To punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort.1033: not all states allow nolo contendere pleas including and there still must be a factual basis MAKING AND BREAKING DEALS: 1034-54 *Bordenkircher v. NY p.Coercion does not equal vindictiveness. Hayes p. there is no such element of punishment or retaliation so long as the accused is free to accept or reject the prosecution’s offer. No constitutional requirement for factual basis. will harm another defendant. or hurt the defendant in another case.
On appeal. . .Cont.1049: . The sentence reduction was contingent upon the prosecutor’s assessment of defendant’s truthfulness.Whether a valid guilty plea can be impeached is a collateral matter by assertions of proof that the plea was motivated by a prior coerced confession. Richardson p. .The guilty plea cannot be coerced and since it is a waiver of trial. the 2nd circuit felt the lies undermined the defendant’s credibility and made his cooperation useless.In debriefing the defendant lied about kickbacks but later admitted it and corrected it. Note 3 p. The prosecutor did not offer up the sentence reduction at sentencing and the defendant objected. PROCEDURAL EFFECT OF A GUILTY PLEA: 1055-60 *McMann v.1055: . completeness.Defendant offered up info in exchange for a sentence reduction.1060: conditional pleas pursuant to Fed Rule of Crim Pro 11(b) can be had to preserve appellate review of certain pretrial motions and the defendant may withdraw the plea if successful on the appeal. . Judge found that he was cooperative and it was warranted. and cooperativeness. accuracy. Note: When client lies you should have him admit it on the stand to avoid the gotcha moment. *US v. it is also a waiver of the right to contest admissibility of evidence. Brechner p.
RIGHT TO IMPARTIAL JURY and VOIRE DIRE: 1061-1102 *Taylor v. cause: something that would render the juror unable to serve (i.Many jurors feel mental health is a poor excuse. Size of Jury and Verdict: . .1062: right to trial by jury is to prevent oppression by the government.jurors can ask questions of witnesses Defendant can waive a jury trial with approval of court and consent of the government. *Farretta: 6th amendment guarantees right to represent oneself but where defendant waives jury the prosecution must consent.Federal cases must have unanimous verdicts but in state that is not the case. . peremptory: exclude a juror because attorney doesn’t want them on jury . Proving Unfair Cross-section: .societal interest in jury trials because the people’s interest in the trial is upheld to allow them to prevent the arbitrary use of the judicial system . . bias) 2.Sometimes where the issues are very technical or facts are really disturbing is a reason to waive a jury. . or eccentric judge.e.Women cannot be excluded from the jury pool because it is not a representative cross-section.Jury trial is often waived where the defendant has a mental health problem and they are at issue. . Rationale: Because if defendant forced to have jury he has at least got what was guaranteed by the constitution.States don’t have to require 12 people to make up a Jury but shouldn’t have less than 6. .Jury nullification allows a jury to afford higher justice by refusing to enforce harsh laws . . Louisiana p.Ballew v. protection from an overzealous prosecutor and the compliant.Not an equal protection case it’s a 6th amendment case. . or experience runs through the group and (3) a community of interests among members of the group such that the group’s interest cannot be adequately represented if the group is excluded fron the jury selection process. Georgia states that 5 people is too small a jury.State must be 9-3 or better. . Louisiana a 5-1 verdict is unconstitutional with 6 jurors must be unanimous. Lousiana p.Court says women have different sensibilities than men therefore without women on the jury not a fair representation of the community. [if only 6 jurors than they must be unanimous] o Burch v.THE RIGHT TO AN IMPARTIAL JURY: 1061-82 *Duncan v.A distinctive group is (1) group defined and limited by some factor (like race or sex) (2) a group with a common thread or basic similarity in attiture. Challenges: 1. Voire Dire used to make sure the jury is actually impartial. General Policies: .1075: .D must show a systematic exclusion of a distinctive group.A petty offense (punishable by jail of 6 months or less) do not qualify for trial by jury. . biased. ideas.
1089: “it is not required that the jurors be totally ignorant of the facts and issues involved. 2 types of bias: actual and implied Wainright v. . The Supreme Court upheld the questions had to be asked.Court therefore held that loss of peremptory was not a constitutional issue. *Rostino v. .RACISM IN JURY SELECTION *Ham v. since juror was dismissed the jury was impartial and that is the real issue. than they can be excluded for cause.1083: Case about drug possession where the defendant was black civil rights activist.Supreme Court held that a race based question didn’t have to be asked. . SC p. Intrusive Voir Dire: Some questions may embarrass the jurors of the venir VOIRE DIRE IN A HIGHLY CHARGED CRINIMAL PROSECUTION *People v. . . .Judge didn’t want them to be asked. .Where crime is interracial.Attorney was asking the jurors questions regarding racism. Witt: challenges for cause in a capital case should be treated no differently than non-capital cases. defendant can request that the jurors be questioned about race because it is the Jury who decides the penalty in capital cases therefore there is a need to uncover racial bias. could be excluded for cause but didn’t matter because defendant used a peremptory.In reverse Witherspoon scenario where juror would vote for death regardless. It is sufficient if the juror can lay aside his impression or opinion and render a verdict on the evidence presented in court. Salamone p. *Turner v. Witherspoon: If juror is so opposed to death penalty they would not impose regardless the verdict. Newton p. *Gray v. Ross .” *US v. Murray: Capital Case .Court holds that membership in the NRA should not exclude those jurors in a case involving gun laws. Mississippi an error in dismissing a Juror reverses the death penalty but not the guilty determination. these jurors are called Witherspoon excludables (they are not a distinct class).Different from Ham because defendant in Ham was a civil rights activist whereas Rostino wasn’t a race based case so the questions not necessary.1094: Jurors were asked about NRA membership.
Batson applies to the actions of the defense counsel as well as the prosecution. Kentucky p. Doesn’t take much to bring a Batson claims and almost all get to stage 3. Batson cases are either won at the trail level or not at all (a few cases aside). Batson 3 Step Process: . court decides if race discrimination was in fact proven. . . must show race neutral explanation (of any sort.Miller-El cases only post Batson cases decided for the defendant. Prosecutor then has a chance to provide neutral reasoning for the dismissals other than race.Prima facie case of race discrimination made o Step one is satisfied by producing evidence sufficient to permit the trial judge to draw and inference that discrimination has occurred.Batson case opposed to Taylor case? . Notes: . . . however stage 3 relies upon trial court’s measurement of prosecutor’s credibility and this is a fact issue given great deference upon appeal.striking all people who speak a certain language may be pretext for racial discrimination .no standing requirement for a Batson challenge . even if not factually backed) .fair cross-section applies to jury pool not to actual jury . Consequently.If explanation is tendered.Burden shifts. Defendant was denied a new jury.1104: .PEREMPTORY CHALLENGES AND BATSON – 1102-1125 *Batson v.Defendant was a black man and the Prosecutor used his peremptories to excuse all the blacks from the jury. .Supreme Court held that intentionally striking jurors based upon race is unconstitutional and it must be proved by defendant.Batson applies to gender.Court remanded to either pick new jury or to reverse the peremptories and sit that jury.
1126: Jury has an inherent power to disregard evidence and acquit if conscious provides.However.Juror was dismissed and Court had to figure out if nullification was an appropriate reason. o difficult to separate nullification from bad or ignorant behavior.1127: .Defense counsel cannot ask the jury to nullify because as officer of the court you are asking the jurors to violate their oath. . *US v.Power not right to nullify do we acknowledge that the power exists? No. This was found to be improper because guilt and sentencing are separate stages. .JURY NULLIFICATION: 1126-41 *US v.However Jury no longer informed of its right to nullify. .Judge wanted to inform the jury of the potential lengthy sentence behind the crime (to be issued against a young man) the underlying intent was to try for nullification.Court has the power to remove a juror under 23(b). . Dougherty p. if the juror is behaving badly but still deciding on the weight of the evidence then he can’t be dismissed. . . Thomas p. How do we do this and still protect the deliberation process and its secrecy? Notes: .
Face-to-face confrontation was not necessary also because the jury had the ability to analyze the testimony and witnesses demeanor. Court says that confrontation is merely a rule of procedure to be used to guarantee cross-examination.Court held this was ok because the defendant had the right to observe the proceedings and the defense attorney would have right to cross-examination. *Olden v. Rape shield statutes prevents examination of the victims past sexual experiences HEARSAY AND CONFRONTATION: *Mattox Rule p. .Both the witness and the victim testified at trial and the Judge denied cross-examination about their relationship.1163: Court reverses Roberts dicta which dealt with the indicia of reliability thereby divorcing confrontation issues from reliability issues.1141: Can a child testify outside the defendant’s presence to prevent emotional disturbance or a frozen witness? .This violated the right to confrontation and was not harmless error.14 of Supplement: Dying declarations are admissible as is forfeiture by wrongdoing where the wrongdoing designed to prevent the witness from testifying. Roberts Rule p. .She then changed the story to say only raped by the defendant. *Crawford v. (this violates the confrontation clause because it is testimonial) . call to 911) *Hammond: where a victim is interviewed by police that is testimonial. Craig p. . *Davis: reporting incident for help is not considered testimonial (i.1153: White victim allegedly raped by a black defendant and another person which was corroborated by a black person whom she was living. *Giles p. 1157-8: same as Mattox rule but State wanted to introduce the testimony.e.1157: Defendant can introduce testimony of dead witness from a previous trial where witness was cross-examined by a person with a similar or identical interest. Washington p. Kentucky p. . *Ohio v.CONFRONTATION CLAUSE: 1141-1157 *MD v. Court found that it was OK.
.1183: deals with redaction as a way to introduce a confession and satisfy Bruton. in order to introduce a confession it must not suggest another party to the crime (merely erasing the co-defendant’s name is ineffective).-In Cruz however both defendants confessed and the confessions interlocked it doesn’t matter because they will not be able to be separated by the jury so inadmissible.1194: Supreme Court upholds the right of the Judge to bar witnesses where the defendant waited to call the witnesses until the 11th hour as a tactic in violation of the discovery rule. Texas p. MD p. Burr p.1191: pronouns can sometimes be used to satisfy the redaction RIGHT TO COMPULSORY PROCESS: 1191-1203 Obtaining Witness In Your Favor: *Washington v.1193: compulsory relates to documents as well as witnesses.1191: defendants barred from calling co-defendants as witnesses because they are expected to be biased. .Court says redactions come close to being ineffective due to the facts and in reality no redaction has taken place thereby denied by Bruton/Cruz.RIGHT TO HAVE CO-DEFENDANT’S CONFESSION EXCLUDED (BRUTON): 1177-91 Bruton: Incriminating confessions of co-defendant violate confrontation clause and are inadmissible. Note 3 p. *US v. . no chance for cross.1178: Supreme Court holds that a confession is barred as evidence against a co-defendant in a case called Bruton there. Illinois p.Therefore. NY p.1191: the redaction changed the meaning of the confession so it violates the rights of the defendant. *Cruz v. Supreme Court held that this was a violation of the 6th amendment because it denied compulsory process and the justification was insufficient. • Court said that misconduct implicates the whole fairness of the process which goes beyond tactical issues. *Gray v. allowing these games would hurt the whole justice system. • Judge did a credibility determination on the witnesss before barring them from testifying (credibility is a jury decision). . Note 4 p. *Taylor v.
(what if defendant doesn’t want this instruction?) • *Lakeside: held that instruction doesn’t violate self-incrimination clause.DEFENDANT’S RIGHT TO TESTIFY: 1203-1213 *rock v. which is like a penalty for not testifying.1205: Prosecutor commented to the jury about the defendant’s non-testimony. Kentucky: defendants have a right to an instruction that the jury should make no inferences from failure to testify. *Carter v. Witness Sequestration: can be used to prevent the witnesses from becoming biased by the other witnesses’ testimony or from being influenced by it. • The Judge instructed the Jury that not testifying on own behalf did not equate to being guilty. Ark: Hypnosis Case • Supreme Court rejected a decision to deny any testimony by the defendant that had been hypnotically refreshed Rationale behind rule was that no way to know if actual recollection or was suggested during the hypnosis). California p. • Supreme Court said that these types of statements violate the 5th amendment by allowing the jury to use not testifying as evidence. • The Supreme Court felt it infringed upon the defendant’s right to testify on his own behalf. • Dissent felt that the statements did not compel the defendant to testify and the limiting instruction was sufficient and beneficial to his case because it instructed the jury not to speculate on the defendant’s lack of testimony (jury would have noticed on their own). . *Griffin v.
1127: the earlier case with the juror who was disruptive and refused to convict no matter what.court will presume prejudice. the minority ought to ask themselves whether they might reasonably doubt the correctness of a judgment which was not concurred by the majority. this was considered misconduct.” JURY MISCONDUCT *People v. Court found that this did not influence his thinking on the case and the verdict was ok. (Even though the juror looked at the newspaper. however the judge should interview the juror about what they saw and what they told the other jurors. upon the other hand.” JURY TAMPERING *Remmer.1214: W • When a jury is deadlocked the judge can give an instruction: “if much the larger number were for conviction. any private communication. Juror had applied for a job at the DA’s office. he may have been checking baseball scores. • • jury coin-flipped to decide whether to charge murder or manslaughter.JURY VERDICTS Allen Charge p. or tampering directly or indirectly. before dismissing the juror. Thomas p.“in a criminal case. NOTES: • it is hard to challenge a jury verdict because not supposed to see deliberations • Polling the Jury to make sure the verdict is valid cannot impeach the verdict unless outsie influence has affected the decision. Halloway (CA). a dissenting juror should consider whether his doubt was a reasonable one… If. with a juror during a trial about the presumptively prejudicial. if not made in pursuance of known rules of the court and the instructions and directions of the court made during the trial with full knowledge of the parties. contact. In cases where juror is disruptive the judge can dismiss when he refuses to be impartial. Inconsistent Verdict Theory: where jury reaches verdict but an varying grounds this is ok so long as the received proper jury instructions . the verdict came back as murder and the judge declared a mistrial. the majority were for acquittal.) PREJUDICED JUROR CASES: *US v.
(2) district court acted within its discretion in departing downward five levels based on finding that suspect's misconduct contributed significantly to provoking officers' offense behavior. deterrence and keeping them off the street (not rehabilitation). because under the sentencing guidelines lesser crimes could be punished harsher than heinous crimes.1227: • Purpose of guidelines was based on retribution. 1269-1305 *Mistretta v. • Real offense issue. • there was no parole and guidelines were mandatory with guarded discretion to grant upward or downward departures. (3) district court improperly based three-level downward departure in part on fact that police officers would lose their jobs.court can consider what defendant really did not just what was plead to.1258: due process is not violated when the judge gets additional out of court info to assist him in the sentencing of the death penalty. and (5) district court acted within its discretion in considering police officers' high susceptibility to abuse in prison and fact that they were subjected to successive state and federal prosecutions as factors upon which to base downward departure.SENTENCING: 1220-1240. 2 types of downward adjustments: (1) when defendant’s participation in the crime was minimal (2) when defendant clearly demonstrates acceptance of responsibility for his offense *Koon v. NOT IN SYLLABUS!! DOWNWARD ADJUSTMENTS ETC *US v. Dunnigan p.] Notes: • Disparity is a matter of opinion.1240: enhancing sentence for perjury at trial does not undermine the defendant’s right to testify. *Williams v. . (4) district court improperly based such threelevel departure in part on its belief that police officers posed low risk of recidivism.1245: 1) district court's decision to depart downward from applicable sentencing range under Sentencing Guidelines was to be reviewed under abuse of discretion standard. [this system prevents discrepancies or disparity between sentencing of similar crimes. prosecutor’s can choose what charges to bring to get the punishment they feel is necessary can also affect sentence thru the plea. US p. US p. NY p. • Guidelines subject to gamesmanship.
*Wasman v. o (Judge can say at trial that there was a greater record to support the harsher sentence whereas as the guilty plea all facts come from the defendant so the crime will not seem as bad) Note: In overcoming the presumption the argument must be based upon objective facts. The New Jersey Supreme Court. violated defendant's Sixth Amendment right to trial by jury. Defendant appealed. • However a judge isn’t barred from giving a harsher sentence in a second trial so long as new facts warrant the harsher sentence and the judge must put those reasons on the record.involved guilty plea but after appeal the case goes to trial. • *TX v. violates due process. • US SC held that: o (1) other than fact of prior conviction.1270: Defendant was convicted pursuant to guilty plea in the Superior Court. Cumberland County. any fact that increases penalty for crime beyond prescribed statutory maximum must be submitted to jury and proved beyond reasonable doubt. . Smith. Washington p.v Pearce p. of possession of firearm for unlawful purpose and unlawful possession of prohibited weapon • Defendant was sentenced to extended term under New Jersey's hate crime statute. US • There must be vindictiveness (punishment for exercising his right) • A presumption arises and the government must overcome it. on basis of sentencing judge's finding that defendant acted with deliberate cruelty. *Blakely v. (this is because the extra sentence is a new accusation which is afforded the right to be heard by the jury. • “reasonable likelihood” that the increased sentence was vindictive No Presumption Cases: • *Chaffin-no vindictiveness because new jury without knowledge of first jury and no personal stake in the prior conviction. NJ p. affirmed.1286: trial court's sentencing of defendant to more than three years above the 53month statutory maximum of the standard range for his offense. The Superior Court. o (2) state hate crime statute which authorized increase in maximum prison sentence based on judge's finding by preponderance of evidence that defendant acted with purpose to intimidate victim based on particular characteristics of victim violated due process clause.) JUDICIAL VINDICTIVENESS *NC . Defendant appealed. Law Division.1305: • Judge who punishes a defendant for exercising appeal rights. Appellate Division affirmed.APPRENDI AND FORMALIZING SENTENCING *Apprendi v. Court felt there was no vindictiveness because trial judge had no personal stake. McCullough-different sentencing judges so no presumption • *Alabama v.
if multiple victims is it one offense or multiple offenses? Must look at the crime statutes and compare them to the crime actually committed. US. no matter if the lesser crime is prosecuted first.Court held that there were separate criminal impulses so it is 2 transactions. *Blockburger v. 1313: multiple drug sales on different days. *Whalen-cant impose extra sentencing because rape is lesser included offense of the felony murder and legislature didn’t intend multiple punishments. .He was found guilty for both in trials in separate jurisdictions. Same offense issue. 29. Ohio p. What if the person is acquitted for GTA but then charged for joyriding for the same occurrence? Does the greater offense charge for the lesser as well? Unit of prosecution issue. 1973.Question of whether this was one or more crimes.DOUBLE JEOPARDY: 1310-1331 Fifth Amendment protects defendants from being tried twice for the same crime.e. . Must look to statute as written by the legislature. • Mizz Supreme Court did a Blockburger analysis found double jeopardy. Blockburger struggles where offenses are different and the crimes fo not seem that different because differences have nothing to do with actual crime (such as time of the offense). o Here there are different elements so different offenses. .1318: Defendant stole a car on Nov. o [this doesn’t apply where the greater offense has not yet arisen at the time of the trial for the lesser crime i.Court found them to be separate acts because different days even though joy riding is a separate included offense. *Brown v. *Gore v. . defendant ordered the drugs on day 1 during a delivery and then the 2nd set delivered the next day.defendant sentenced for three counts consecutively arising from one drug sale. not a lesser included offense. Court found that this was ok Note: Blockburger works ok with lesser included offenses because of merger. (continuous transaction?) . Hunter p. • US Supreme Court found that no double jeopardy where only 1 trial and where the legislature is clear it wants 2 punishments. assault and then victim dies after trial] *Missouri v.Supreme Court reversed holding that they were the same crime and cant be tried twice for the same crime. 1973 found joy riding in another jurisdiction on Dec 8. 1325: 2 similar crime statutes but if convicted of both crimes they run concurrent. . US p. Rule of Lenity: Court must construe criminal statutes narrowly for benefit of defendant and should not convict defendant on more offenses than the legislature authorized. .Lesser included offense test: does each offense require proof of element different from the other? o If so. Can get confusing because legislative intent is not always clear.
*Green v. *US v. Some states allow appeals of acquittals on legal issues for precedent purposes only. *US v. .Defendant tried 1st time for one victim and acquitted.(Blockburger didn’t apply because there was more than one victim. • If no resolution of facts than can retry the case. would be retrying for same crime and cannot retry. US. .Supreme Court had differing views of Sanford because there is a 7 day period for post trial motions.Judge dismissed the case. Martin Linen Supply Co. and the appellate court reversed because there was no authority to give that direction. it doesn’t matter the reasoning if it is for the defendant it is considered an acquittal for double jeopardy reasons. Supreme Court reversed because he was not in Jeopardy because the 2nd case hadn’t started yet. Swenson p.FORMER ACQUITTAL/COLLATERAL ESTOPPEL: 1331-1353 *Fong Foo v. he was then tried again for another victim and convicted. *Ashe v.1331: Judge directed jury to acquit. Court said estoppel is not applied hyper-technically in criminal cases and it should be decided what Jury would had to have held to acquit here . Note: Prosecutor in federal court cannot appeal acquittals. (ex: defendant bribed judge) Note case . o Supreme Court implied acquittal because it was a lesser offense.1335: Robbery of a poker game. Prosecutor retried because not acquitted.*US v.If was that defendant was not a robber therefore. .. Scott. State appealed.Question arose as to whether the second case was collaterally estopped. so different elements) Implied Acquittals: . Sanford-defendant asked on 2nd trial after mistrial to dismiss the indictment because the evidence at 1st trial was insufficient.defendant charged with 1st degree murder and convicted of 2nd degree. • Court agreed and dismissed. US p. o Any acquittal triggers double jeopardy. . • Supreme Court then upheld acquittal upon double jeopardy grounds. Court found therefore still in jeopardy.
in most bench trials no opening statements 2.[If there is a situation where statute of limitation has run than whether it is a mistrial or a dismissal makes no difference because prosecutor can’t refile.Defendant says why should they get to retry where they messed up the indictment anyway.In a bench trial when 1st witness is sworn in. Somerville bad indictment. Fed wont re-prosecute unless prior proceeding left fed interests demonstrably unvindicated. or was indifferent to the danger of. US p.] IMPORTANT! .When does double jeopardy attach? . Defendant was then convicted.Court likens this to a hung jury and says retrial is not barred however if stoppage interfered with defendant’s ability to get acquittal it should be treated as an acquittal. p.Supreme Court finds manifest necessity for mistrial because if convicted would be overturned and retried anyway. if it went to trial it would be reversed so mistrial needed to prevent implied acquittal if dismissed. .1352 .Judge does dismiss and restarts trial. In jury trial must be at swearing of jury because prosecution will hear defendant’s opening statement. . a mistrial” DUAL SOVERIGNTY . Illinois p. .1348: defendant can’t use an acquittal or conviction from one to bar a trial in another sovereignty (can’t use a state verdict to block a federal case) *Abbate. .MISTRIAL DOCTRINE *Downum v.Each state is also considered a different sovereignty o State and municipal courts are still same soverign. .In a Jury trial it attaches when the Jury is sworn in because 1. therefore if the case is dismissed (and double jeopardy attached at 1st witness) the prosecutor would know the defendant’s strategy. Mistrial Test: “manifest necessity” or “ends of public justice test” *Illinois v.1341: Prosecutor’s key witness not available so he asks to dismiss until witness can be found. (Court seems to ignore Downum Principle of best chance at acquittal) Defense Motion for Mistrial will never create a jeopardy bar except where prosecution intended to goad defendant into asking for a mistrial (this is a really tough standard because must get in the mind of the prosecutor) Oregon standard is probably better “whether prosecutor intended.fed can prosecute same conduct that underlies a state verdict . .*Bartkus v.