Pre-Trial Release

A D’s pretrial release from custody typically is in exchange for a pledge of something of value that the D
will appear in court and will comply with the court’s orders in a pending criminal case. The use of bail is
to accommodate the D’s interest in pretrial liberty (consistent with the presumption of innocence) and
the society’s interest in assuring that the accused is present for trial.

The 8th Amendment states that “excessive bail shall not be required.” While state constitutions at least
implicitly recognize the fundamental nature of the right to bail by their express prohibitions of excessive
bail (US v. Salerno), found that there is no federal constitutional right to bail, holding that the 8th
Amendment is not violated by the use of pretrial detention due to the dangerousness of the D.

Legislative or Judicial exceptions to general right of pretrial release:

-states which use capital punishment- the denial of bail occurs in capital cases if the prosecution can
show that the proof is evident or the presumption is great that the D is guilty.
-denial of bail is frequently authorized in cases in which the prisoner has escaped and is recaptured
-denial of bail may be authorized in cases of criminal contempt
-some state legislatures and Congress have enacted laws prohibiting pretrial release due to a D’s
criminal history or to the nature of the pending charges.

Bail becomes excessive when a court sets it higher than reasonably necessary to assure a D’s
appearance at trial.

Types of Release:

(1) Personal Recognizance- court merely allows the D to be at liberty in return for a written promise
to return and comply with the orders of the court throughout the case.
(2) Unsecured Bond- a pledge by the D alone to be liable for a specified sum if D should breach a
material condition of his release. A contractual undertaking.
(3) Release on Nonfinancial Conditions- placing person in custody of a person or agency, placing
restrictions upon travel, association or place of abode, or requiring confinement during specified
hours.
(4) Cash Bond- A D may be released from custody by depositing cash in the amount of the bail with
the court. The money is deposited by the clerk in an escrow account and is available for
forfeiture or for application to indebtedness upon judgment in the case. The cash may be
returned only if upon compliance with the terms of the bond.
(5) Percentage Bond: Instead of a total cash bond, a court may permit the D to deposit only a
percentage of the total amount of the bond.
(6) Property Bond- The pledging of real property or of stocks and bonds as security for a bail bond is
permitted.
(7) Surety Bond- The court may require the bond of a D to be underwritten by one or more sureties.
The surety is undertaking an indebtedness to insure the conduct of another.
 (8) Guaranteed Arrest Bond Certificate- A printed card or certificate of an association obligating the
association and a licensed surety to guarantee the appearance in court of the member whose
signature appears on the certificate and to pay any fine or forfeiture imposed upon the member.

Bail Statutes:

The Bail Reform Act of 1984 governs release determinations in federal courts and may serve as a
reference for defining various types of pretrial release. The statutory scheme seems to be that an initial
determination is made by the court (with assistance from the prosecutor) about whether the accused is
a flight or safety risk.

A factor included in any bail determination is “the nature of the offense charged.”

The court has a very wide latitude in setting bail with the additional authority to make certain special
conditions of bail such as refraining from contacting certain individuals or remaining within the
jurisdiction.

Once taken, bail remains in effect until the termination of the proceedings, including any appeal, unless
revoked, modified, or forfeited. Bail taken in any proceeding must be terminated:
(1) When the D is acquitted or the prosecution is dismissed;
(2) When the D, following conviction, fails to perform a timely appeal;
(3) when the D’s appeal is dismissed;
(4) when the D’s conviction is affirmed on appeal

Pretrial Detention

Detention is authorized if the prosecution persuades the court that the D poses either a danger to the
community or to any other person or a danger of not appearing for trial.

18 USC 3142 authorizes a judicial officer to order the detention of a D pending trial if the prosecution
demonstrates by clear and convincing evidence that no release conditions will reasonably assure the
safety of the community.

Pretrial (also known as preventive) detention is constitutional, violating neither due process nor the 8 th
Amendment, as long as that detention (1) serves a compelling state interest, (2) does not impose
punishment before an adjudication of guilt, and (3) is implemented in a fair, non-arbitrary manner.
-Preventive detention due to dangerousness is not ‘excessive bail’ under the 8 th Amendment.’

Detention is also authorized by the statute if the prosecution proves that the D poses such a risk of flight
that no condition or combination of conditions will reasonably assure the D’s presence at trial. Because
the act is silent on standard of evidence required, courts have indicated that the flight risk must be
shown simply by a preponderance of the evidence. The statutory standard for assuring appearance is a
reasonable likelihood of appearance rather than a guarantee of appearance. 18 USC 3142
US v. Watson- the D held the city under siege for 3 days uttering threats to detonate explosives on The
National Mall. The crime charged was a violent offense and D had no roots in the DC area. It was held
that D’s release on any condition or combination of conditions would not reasonably assure his
appearance or the safety of the community.

A rebuttable presumption of dangerousness arises when a judge finds that a D is charged with a violent
crime, capital offense, or a drug felony with a maximum term of 10 years imprisonment and within 5
years of the finding, the D was convicted of or released from prison for a similar offense. A rebuttable
presumption of both dangerousness and risk of flight occurs when a D is charged with a drug felony with
a maximum term of 10 years imprisonment or with the use or possession of a firearm during the
commission of any violent crime or drug trafficking crime, and there is a finding of probable cause that
the D committed an offense enumerated in the statute.

United States v. Abad:

Facts: On July 13, 2003, Vincente Abad was arrested and later indicted for interstate travel with intent to
commit criminal sexual activity with a minor in violation of 18 USC 2423,2243, and 2246.

Procedural History: The magistrate judge denied the government’s motion for detention noting that
Abad had rebutted the statutory presumption favoring detention and the gov’t failed to demonstrate, by
clear and convincing evidence, Abad was a danger to the community, or to show, by a preponderance of
the evidence, Abad was a flight risk. The magistrate judge noted that Abad had no prior criminal history,
Abad was attending college, abad did not use subterfuge to convince the girl to meet him, and Abad’s
family was willing to act as 3rd party custodians.

The district court adopted the magistrate’s judge’s ruling, denied the government’s motion for
detention, and ordered execution of papers by which Abad’s parents would lose the equity interest in
their home if Abad failed to appear for trial. The Gov’t appealed the district court’s decision and
requested a stay of the release order. The District court expressed additional reasons for denying
detention saying the minor girls participation on the internet ‘lessens the introductory contempt of the
actions of the D’ and persuaded the court this ‘was not the usual ‘poor victim’ situation.’

A D may be detained before trial only if the gov’t shows by clear and convincing evidence that no
release condition or set of conditions will reasonably assure the safety of the community and by a
preponderance of the evidence that no condition or set of conditions.. will reasonably assure the D’s
appearance.

Because the district court found probable cause Abad committed an offense under 18 USC 2423, a
statutory rebuttable presumption arises ‘that no condition or combination of conditions will reasonably
assure the appearance of the person as required and the safety of the community.’

To determine if release conditions exist that will reasonably assure the appearance of a D at trial and the
safety of the community, the court considers the following: (1) the nature and circumstances of the
crime, (2) the weight of the evidence against the D, (3) the history and characteristics of the D, including
mental condition, family ties, employment, community ties, and past conduct; and (4) the seriousness of
the danger to the community or to an individual.

Holding: This court found that the evidence establishes Abad is a danger to the community and a flight
risk. Even though Abad met the burden of production to rebut the detention presumption, the
presumption favoring detention does not disappear, but remains for consideration. Based upon the
evidence presented, the district court erred in ruling Abad is not a danger to the community.

We conclude, the government proved, (1) by clear and convincing evidence, Abad is a danger to the
community, and, (2) by a preponderance of the evidence, Abad is a flight risk.

Notes and Questions:

The United States Attorney can seek preventive detention under 3142(f)(1)(a) in any case that ‘involves
a crime of violence.’

p. 801-818 (except 802-804)

Preliminary Proceedings

Following the arrest and administrative ‘booking’ procedures, the police take the accused to a judge for
a proceeding called an ‘initial appearance’ or ‘preliminary arraignment’ to (1) inform the accused of the
charge, (2)appointing counsel, (3) setting conditions of release, and (4) scheduling future proceedings.
(the judge may combine the initial appearance with a “Gerstein hearing” for D’s who were arrested
without a warrant, in order to examine the validity of their detention. Within a short period after the
initial appearance, the judge conducts a preliminary hearing to determine whether there is probable
cause to hold the D to answer the charges in a court which has jurisdiction to conduct the trial of felony
cases.

Most jurisdictions require that the arresting officer bring the accused before the nearest available judge
without unnecessary delay. An unreasonable delay between arrest and the initial appearance may
violate due process. In evaluating an allegation of unreasonable delay, courts analyze the amount of
time that passes as well as how and why the delay occurred.

Throughout the 50 states and the federal system, the preliminary hearing is used but there are
differences as to the nature of the preliminary hearing:
(1) admissibility of evidence- judges can consider evidentiary matters admitted in the form of hearsay,
illegally obtained evidence, and other incompetent evidence in deciding the issue of probable cause.
(2) Prosecutor’s evidentiary burden- the probable cause standard of the preliminary hearing that the
accused committed the offense charged is not as demanding for the prosecutor as the trial standard.
(3) Participation of the accused- most states’ rules permit the D to conduct an active defense at the
preliminary hearing.
Two alternative conceptual models of the preliminary hearing assist in understanding its role in the
criminal justice system:

(1) Backward-looking model: Primarily concerned with the legality of the arrest and the validity of
the detention of the arrested person. The focus of this model is on the factual (i.e. whether the
accused in fact committed the crime), rather than legal, guilt or innocence of the accused.
There is no right to counsel, to present evidence, or to cross-examine witnesses.
(2) Forward-looking model: Concerned with whether there is sufficient probability of a conviction
at trial to justify further proceedings. The court should dismiss cases lacking probable cause. The
focus is upon the probability of the legal (whether the accused would be convicted), rather than
the factual, guilt of innocence of the accused. Trial type standards generally are imposed under
this model- the rules of evidence apply because they would apply at trial. The level of proof
would have to be legally sufficient to avoid a directed verdict of acquittal, and the rights of the
accused would be similar to those at trial- right to counsel, to cross examine witnesses, to
testify, to prove affirmative defenses, and to present witnesses.

*In many jurisdictions, the reality is that a judicial finding of no probable cause at the preliminary
hearing does not preclude the prosecutor from taking the case to the grand jury for indictment or filing
an information against the accused.

*In most jurisdictions, the current rules and statutes about preliminary hearings approximate the
backward-looking model.

*it is important to note that there is no constitutional right to a preliminary hearing which involves
the adversary proceedings and the right to counsel. In Gerstein v. Pugh, the Supreme Court held that,
instead of a preliminary hearing, it is constitutional for a state to prescribe that probable cause be
determined by a court informally, with only a prosecutor present.

Functions of the Preliminary Hearing

In Coleman v. Alabama, the Supreme Court concluded, that once a state authorizes a preliminary
hearing, the 6th Amendment right to counsel applies to that hearing.

Functions of the Preliminary Hearing:

(1) The primary function of a preliminary hearing is the screening of cases. The prosecution must
prove that there is probable cause to believe that a crime was committed and that the D
committed the crime charged.
(2) Pretrial Discovery- in meeting the evidentiary standard for sending the case to the grand jury,
the prosecutor necessarily provides the defense with some discovery of the prosecutor’s case.
Defense counsel may obtain even more discovery by cross-examining the prosecution’s
witnesses at the hearing and by subpoenaing other potential trial witnesses to testify as defense
witnesses at the hearing.
 (3) Future Impeachment- the skilled interrogation of witnesses can be a vital impeachment tool for
use in cross-examination later at trial. Witnesses are more likely to make damaging admissions
or contradictory statements at the preliminary hearing because they are less thoroughly briefed
for that proceeding then they are for trial.
(4) Perpetuation of Testimony: preliminary hearing testimony traditionally has been admitted at
trial as substantive evidence under the ‘prior testimony’ exception to the hearsay rule, where
the witness is unavailable to testify.
(5) Pretrial Release- where bail is set at the initial appearance on the basis of sketchy facts, the
preliminary hearing provides the judge with the first extensive examination of the facts of the
individual case, the testimony may persuade the court to reduce or increase bail, or impose
other terms or conditions of pretrial release. The hearing also insures that an accused who has
been unjustifiably charged will be promptly released from custody.
(6) Plea Bargaining- A preliminary hearing may be an ‘educational experience’ for the D, who is
unpersuaded by the defense counsel’s opinion that the prosecution has a strong case that a
negotiated plea is in the D’s best interest. Conversely, the proof at the hearing may be
insufficient on the charged offenses, and require reduction of excessive charges. It thereby
serves as a check against the prosecutorial practice of ‘overcharging.’

Procedural Issues at the Preliminary Hearing

A. Timing of the Preliminary Hearing: The preliminary hearing must occur within a reasonable time.
In many cases, the issue is not when the examination is held but whether it must be held at all.
Most courts have held that there is no necessity for a preliminary hearing after a grand jury first
has returned an indictment. Thus, where an accused is first arrested after indictment, rather
than on an arrest warrant, the accused is not entitled to a preliminary hearing.

Ex. 18 USC 2060(e) provides that no preliminary hearing is required for an arrested person if at any time
subsequent to the initial appearance of that person and prior to the date fixed for the preliminary
examination, an indictment is returned.

B. Waiver of Preliminary Hearing: A D may waive a preliminary hearing. Defense counsel may
consider a waiver where the hearing presents a substantial danger to the defense.
C. Dispositions Following Preliminary Hearing: At the close of the prosecution’s case at a
preliminary hearing, defense counsel should move to dismiss the charges, based upon the
failure of proof to establish: (1) that an offense was committed; (2) that the accused committed
an offense, and (3) Venue- where the offense took place, for jurisdictional purposes.
Frequently after a judge denies one of the motions, defense counsel will move the court to
reduce the original charge to a lesser offense.

-If the evidence presented at the preliminary hearing establishes probable cause to believe that
the D has committed the offense, the court must refer the case to the grand jury for possible
 indictment, or to the court for trial following the filing of an information on any charge
supported by probable cause. If the court does not find probable cause to refer the charge, it
may nevertheless find probable cause as to some other offense. In this situation, the court may
permit the prosecution to amend the charge if substantial rights of the D are not prejudiced.
*Dismissal of the charge due to the insufficiency of the evidence at a preliminary hearing does
not bar a subsequent prosecution arising out of the same transaction.

p. 764-782

Prosecutorial Discretion

The Decision to Investigate or Charge

A. Discretionary Authority:
Prosecutors have broad discretion (rather than an obligation or a duty) about when and
whether to investigate and/or to prosecute. Prosecutors act as part of the Executive
Branch. Courts have also noted repeatedly that the decision to prosecute is particularly ill-
suited to judicial review. Among the discretionary factors that are not easily reviewable are
the strength of the case, the prosecution’s general deterrence value, the State’s
enforcement priorities, and the cases’ relationship to the State’s overall enforcement plans.

United States v. Batchelder:

Facts: Respondent, a previously convicted felon, was found guilty of receiving a firearm that
had traveled in interstate commerce, The District Court sentenced him to 5 years
imprisonment, the maximum term authorized for violation of 922(h). The Court of Appeals
affirmed the conviction but by a divided vote, remanded for resentencing. The Omnibus
Act, which is identical to the other act which respondent was charged under allows no more
than the 2 year maximum sentence.

Holding: This court has long recognized that when an act violates more than one criminal
statute, the Government may prosecute under either so long as it does not discriminate
against any class of defendants.

B. Criteria for the Exercise of Discretion

While not formally binding on a prosecutor’s decision whether or who to investigate, or whether, who,
and/or to charge, the ABA has adopted detailed standards intended to assist prosecutors in the
principled exercise of their investigatory and charging discretion.

C. Pretrial Diversion for Defendants

Prosecutors also, in many jurisdictions, possess substantial authority to divert accused
persons into whatever pretrial intervention programs that may have been established in
their jurisdiction.

Selective Prosecution

Misuse of prosecutors discretion in prosecuting criminal cases especially presents itself

when a prosecutor, with the requisite amount of probable cause, purposefully chooses to
pursue a case because of the D’s race, religion, or some other arbitrary classifications.

Wayte v. United States:

Issue- whether a passive enforcement policy under which the Government prosecutes only
those who report themselves as having violated the law, or who are reported by others,
violates the 1st and 5th Amendments.

The President issued a proclamation that issued male citizens to register with the Selective
Service System. Petitioner fell within this class but did not register. Petitioner was sent a
letter stating that he must register and that he had not done so yet and that his failure to do
so may result in criminal prosecution. Petitioner received the letter but did not respond.
Pursuant to Dept of Justice policy, those referred were not immediately prosecuted and
were in fact given amble changes to change their mind and register.

Petitioner was indicted and he moved to dismiss the indictment on the ground of selective
prosecution. He contended that he and the other indicted nonregistrants were ‘vocal’
opponents of the registration process who had been impermissibly targeted for prosecution
on the basis of their exercise of 1 st Amendment rights.

The Federal district court found the govt engaged in impermissible selective prosecution;
the 9th Circuit Court of Appeals reversed.

Although prosecutorial discretion is broad, it is not ‘unfettered.’ Selectivity in the

enforcement of criminal laws is … subject to constitutional constrains.’ It is appropriate to
judge selective prosecution claims according to ordinary equal protection standards.

RULE- Petitioner must show both that the passive enforcement system (1) had a
discriminatory effect, and (2) that it was motivated by a discriminatory purpose.

We conclude that the gov’ts passive enforcement system together with its ‘beg’ policy
violated neither the 1st nor 5th Amendment. Judgment of the Court of Appeals affirmed.

United States v. Armstrong:

Issue- the showing necessary for a D to be entitled to discovery on a claim that the
prosecuting attorney singled him out for prosecution on the basis of his race.

Facts- respondents were indicted on charges of conspiring to possess with intent to

distribute more than 50 grams of cocaine, and conspiring to distribute the same, and federal
firearm offenses. For 3 months prior to the indictment, agents infiltrated a suspected crack
distribution ring by using 3 confidential informants. On 7 separate occasions, the informants
bought crack from respondents and witnesses them carrying guns. The agents searched the
hotel room in which the sales were transacted, arrested respondents – including Armstrong
and Hampton in the room, and found more crack and a loaded gun.

In response to the indictment, the respondents filed a motion for discovery or for dismissal
of the indictment alleging that they were selected for federal prosecution because they are
black.

RULE- the requirements for a selective-prosecution claim: the claimant must demonstrate
that the federal prosecutorial policy “had a discriminatory effect and that it was
motivated by a discriminatory purpose.” To establish a discriminatory effect in a race case,
the claimant must show that similarly situated individuals of a different race were not
prosecuted.

The vast majority of the Courts of Appeals require the D to produce some evidence that
similarly situated defendants of other races could have been prosecuted, but were not.
We think the required threshold- a credible showing of different treatment of similarly
situated persons- adequately balances the governments interest in vigorous prosecution
and the D’s interest in avoiding selective prosecution.

Holding: The D’s evidence (reports and statistics showing the percentages of blacks being
convicted, etc. ) was not sufficient to show selective prosecution.

United States v. Bass

A federal grand jury returned a 2 nd superseding indictment charging respondent with the
intentional firearm fillings of 2 individuals. The US filed a notice of intent to seek the death
penalty and the respondent, who is black, alleged that the gov’t had determined to seek the
death penalty against him because of his race. He moved to dismiss the death penalty
notice and in the alternative, for discovery of information relating to the Gov’ts capital
charging practices. The District Court granted motion for discovery and the Court of Appeals
for the 6th Circuit affirmed. This court reversed.
In US v. Armstrong, we held that a D who seeks discovery on a claim of selective prosecution
must show some evidence of both discriminatory effect and discriminatory intent. As to
that, Armstrong says that the D must make a ‘credible showing’ that ‘similarly situated
individuals of a different race were not prosecuted.’
Raw statistics regarding overall charges say nothing about charges brought against similarly
situated defendants.

Under Armstrong, therefore, because respondent failed to submit relevant evidence that
similarly situated persons were treated differently, he was not entitled to discovery.

Vindictive Prosecution

United States v. Goodwin:

Goodwin was charged with several misdemeanor and petty offenses, including assault on a
US Park Policeman. He initiated plea negotiations with the prosecutor but later advised the
prosecutor that he did not wish to plead guilty and wanted a trial by jury in the district
court. The prosecutor obtained a 4 count indictment charging respondent with 1 felony
count of forcibly assaulting a federal officer and 3 relate counts arising from the same
incident (higher charges than before when negotiating a plea).

Issue- whether a presumption that has been used to evaluate a judicial or prosecutorial
response to a criminal D’s exercise of a right to be retried after he has been convicted
should also be applied to evaluate a prosecutor’s pretrial response to a D’s demand for a
jury trial.

The prosecutor in this case never suggested that the charge was brought to influence the
respondent’s conduct (unlike Bordenkircher case). The conviction in this case may be
reversed only if a presumption of vindictiveness- applicable in all cases- is warranted.

There is good reason to be cautious before adopting an inflexible presumption of

prosecutorial vindictiveness in a pretrial setting. In the court of preparing for trial the
prosecutor may uncover additional information that suggests a basis for further prosecution
or he may simply realize that information possessed by the State has a broader significance.
At this stage in the proceedings, the prosecutor’s assessment of the proper extent of
prosecution may not have crystallized. A prosecutor should remain free before trial to
exercise the broad discretion entrusted to him to determine the extent of the societal
interest in prosecution.

The nature of the right asserted by the respondent confirms that a presumption of
vindictiveness is not warranted in this case. This Court I Bordenkircher made clear that the
mere fact that a D refuses to plead guilty and forces the gov’t to prove its case is insufficient
to warrant a presumption that subsequent changes in the charging decision are unjustified.
 Freedom of the Press and Fair Trials

A. Failing to Control the Press

Sheppard v. Maxwell- Marilyn Sheppard, petitioner’s pregnant wife, was bludgeoned to death in the
upstairs bedroom of their home. From the outset, officials focused suspicion on Sheppard. The
newspapers emphasized evidence that tended to incriminate Sheppard and pointed out discrepancies
in this statements to authorities. 25 days before the case was set, 75 veniremen were called as
prospective jurors. All 3 Cleveland newspapers published the names and addresses of the venirement
and anonymous letters and telephone calls, as well as calls from friends, regarding the impending
prosecution were received by all of the prospective jurors. The courtroom was filled with press.

We believe that the arrangements made by the judge with the news media caused Sheppard to be
deprived of that ‘judicial serenity and calm to which he was entitled.’ The presence of the press at
judicial proceedings must be limited when it is apparent that the accused might otherwise be prejudiced
or disadvantaged. The judge should have adopted stricter rules governing the use of the courtroom by
newsmen, as Sheppard’s counsel requested.

Second, the court should have insulated witnesses, they should not have been interviewed as they had
been.

Thirdly, the court should have made some effort to control the release of leads, information, and gossip
to the press by police officers, witnesses, and the counsel for both sides.

Since the state trial judge did not fulfill his duty to protect Sheppard from the inherently prejudicial
publicity which saturated the community and to control disruptive influences in the courtroom, we must
reverse the denial of the habeas petition.

B. Pretrial Publicity and Defendants Right to a Fair Trial

1. Change of venue: when potential jurors have read or heard prejudicial publicity, a trial judge
should inquire into the nature and extent of the exposure. To prove juror partiality, a D must
show that the publicity either actually prejudiced a juror or pervaded the proceedings so that it
raised a presumption of inherent prejudice.

Where there is a reasonable likelihood that prejudicial news prior to trial will prevent a fair trial,
the judge should continue the case until the threat abates, or transfer it to another county not
so permeated with publicity. During trial, a judge also has broad discretion to sequester the jury
and caution the jurors to avoid media accounts of the proceedings.

A change of venue may be requested by either the D or the prosecution. After an application has
been made, the court must determine whether the application establishes a prima facie case for
granting a change of venue. The trial court has wide discretion which will not be disturbed if it is
supported by sufficient evidence.

US. V. Lindh: Lindh is an American citizen who, according to the 10-count indictment filed
against him in Feb 2002, joined certain foreign terrorist organizations in Afghanistan and served
these organizations there in combat against Northern Alliance and American forces until his
capture in Nov. 2001. Among the various dismissals sough, Lindh sought transfer of venue,
arguing that he could not receive a fair trial in this district owing to pre-trial publicity. All
motions were denied.

A D must establish that he cannot obtain a fair trial anywhere in the country owing to prejudicial
pretrial publicity. In other words, dismissal is appropriate only where a D establishes that
prejudicial pre-trial publicity is ‘so widespread and pervasive that a change of venue would be
ineffective to assure a D a fair trial. “Sheer volume of publicity alone does not deny a D a fair
trial.”

Only where voir dire reveals that an impartial jury cannot be impanelled would a change of
venue be justified.

No jurors will be qualified to serve unless the Court is satisfied that the juror (1) is able to put
aside any previously formed opinions or impressions, (2) is prepared to pay careful and close
attention to the evidence as it is presented in the case and finally, (3) is able to render a fair and
impartial verdict based solely on the evidence adduced at trial and the Court’s instructions of
law.

Lindh failed to meet his burden of establishing that the pre-trial publicity generated in this case,
by both the government and the defense, has been so inflammatory and prejudicial that a fair
trial is absolutely precluded and the indictment should be dismissed without an initial attempt
to see if an impartial jury can be impanelled. D also failed to establish that a transfer of venue
based on pre-trial publicity is appropriate, as the publicity involved here is not so ‘inherently
prejudicial that the trial proceedings in this district must be presumed to be tainted.’

Due Process and Pretrial Publicity

Despite concerns about pretrial publicity and juror impartiality, jurors need not be completely
ignorant of the facts and issues. A trial judge must assess the jurors’ opinions to determine
whether the jurors can impartially decide the case.

Murphy v. Florida

Murphy (d) was convicted in Dade County Florida in 1970 of breaking and entering a home,
while armed, with intent to commit robbery and of assault with intent to commit robbery.
Murphy was notorious in the press for his part in the theft of the Star of India sapphire from a
NY museum in 1964 as well as for the Broward County murder. He was known in the press as
‘Murph the Surf.’ Since that time, Murphy and his attorney made several statements to the
press. This fact and Murphy’s flamboyant lifestyle made Murphy the constant subject of media
interest, in Dade county and elsewhere. At trial, from a pool of 78 jurors, 30 were excused for
personal reasons, 20 for peremptory reasons, 20 were excused by the court for having pre-
judged Murphy. The remaining 8 were to serve, 6 as jurors and 2 as alternates. Murphy then
made a motion to dismiss the chosen jurors because they were aware of his previous
convictions. The motion was denied as was Murphy’s motion for a change of venue.

RULE OF LAW- in order to be considered a qualified, impartial juror, a juror need not be totally
devoid of any preconceived notion regarding the D, merely devoid of prejudice.

The constitutional standard of fairness provides that a D is entitled to a panel of impartial,

indifferent jurors. Qualified jurors need not be totally ignorant of the facts of the case, or
completely insulated from media exposure. As long as no atmosphere of animosity toward the D
exists and the jury would be able to put pre-existing impressions aside and judge the case on the
evidence, due process is not impacted.

ORDINARILY, IN ORDER TO SUCCEED ON SUCH A CLAIM, A D MUST SHOW THAT THE PREJUDICE
WITHIN THE COMMUNITY WHERE HE IS TO BE TRIED IS ‘SO GREAT THAT A FAIR AND IMPARTIAL
TRIAL CANNOT BE OBTAINED THERE.

Patton v. Yount

Yount (D) was convicted of murdering an 18 year old high school student near her home in
Luthersburg in Clearfield County, PA. The pretrial publicity surrounding the crime revealed
Yount’s prior conviction for murder, his confession and a plea of temporary insanity, all of which
were inadmissible evidence at trial. Of 163 potential jurors, all but two were aware of the
publicity. 77%, or 126 jurors admitted that they would carry an opinion into the jury box. Once
convicted, Yount petitioned to a Magistrate for a writ of habeas corpus based on the denial of
Yount’s 6th Amendment right to a fair trial by an impartial jury, challenging 3 jurors based
specifically on their answers to voir dire. The magistrate recommended the writ to be granted,
however, the District Court rejected the recommendation and found the pretrial publicity was
not vicious, excessive, or officially sponsored and that the jurors were able to set aside any
preconceived notions of guilt. Relying on Irwin v. Dowd, the court of appeals found the pretrial
publicity made a fair trial impossible in Clearfield County. In Irwin, where it was held that D was
denied the 6th amendment guarantee, 62% of jurors from the original pool were dismissed for
having fixed opinions about the D’s guilt. In Yount’s case, 77% of jurors admitted to such
prejudice. On this reasoning, the court of appeals reversed the trial court and granted Yount’s
writ of habeas corups.
RULE OF LAW- the passage of time following adverse publicity before a trial can adequately
rebut the presumption that jurors cannot put aside their prejudice against a D, even when a
high percentage of jurors polled admit prejudice.

Irwin stated that it is the months immediately preceeding trial that adverse publicity creates a
presumption that the juror’s claim that they can be impartial should not be believed.
Additionally, there was ample support of the trial court’s finding that there had been no
publicity between the 1st and 2nd trial. The jurors who admitted they still harbored prejudice
were excluded. The 3 challenged jurors ambiguous responses to voir dire were nothing more
than the result of lay persons confused by the leading questions of the defense counsel. Court of
Appeals is reversed.

Gag Orders

Nebraska Press Assoc. v. Stuart

Police found 6 members of the Henry Kellie family murdered in their home in Sutherland,
Nebraska, a town of about 850 people. The description of the suspect was released to the press,
who hurried to the scene of the murders. The next morning, the suspect was apprehended and
arraigned. The case attracted widespread local, regional and national news coverage. 3 days
later, both the prosecutor and the defense counsel joined in asking the court for a restrictive
order, limiting the matters relating to the case that could be disclosed, in order to enable the
impaneling of an impartial jury. The D.Ct. judge ordered that no testimony given at the
preliminary hearing be released. 2 days later, several members of the press moved to vacate the
restrictive order, arguing it violated the 1 st Amendment guarantee to a free press. The D.Ct.
denied the motion.

RULE OF LAW- Prior restraint on the press is not required to insure a D’s 6 th Amendment right to
a fair trial.

Freedom of the press, even where the press will disseminate facts related to an impending trial,
is not overridden by the D’s 6th Amendment rights. Territorial jurisdiction of the court limits the
effects of the restraining order, as does the ability to enforce such an order. On the other hand,
where a community is small, in this case, only 850 people, prior restraint on the press is
ineffective to stop rumors and gossip, which is often distorted and inaccurate.

The Court stated that in personam jurisdiction creates a problem with enforcing restrictive
orders on the press when directed at publications at large, as opposed to those within a
particular jurisdiction. This suggests that, when the prejudicial effects the courts seeks to limit
concern a small community, a more appropriate remedy is a motion for a change of venue.

Press Access to Judicial Proceedings

Gannett v. DePasquale- the 6th amendment guarantee of a public trial accrued not to the press
or public but to the D. The decisions bottom line was that the 6 th Amendment established no
constitutional right for the press and public to attend a criminal trial. The determination rested
on the premise that ‘that the public interest is fully protected by the participants in the
litigation. One year later in Richmond Newspapers v. Virginia, Chief Justice Burger stressed the
presumptive openness of criminal trials, observed that the right to attend such proceedings ‘is
implicit in guarantees of the 1st amendment, without the freedom to attend such trials, which
people have exercised for centuries, important aspects of freedom of speech and of the press
could be eviscerated. Consistent with established 1 st Amendment doctrine, access to trials was
configured coextensively for the press and public.

Globe Newspaper v. Superior Court

A Massachusett’s General Law requires that judges exclude the press and public from the
courtroom during testimony involving sexual crimes given by a victim under 18 years of age. The
statute was challenged by the press citing a constitutional right of access to criminal trials. The
MA Supreme Judicial Court upheld the law.

The Court’s recent decision in Richmond Newspapers firmly established for the 1 st time that the
press and general public have a constitutional right of access to criminal trials. This right of
access to criminal trials is of course, not explicitly mentioned in terms in the 1 st Amendment.
-Although the right of access to criminal trials is of constitutional stature, it is not absolute.

Where, as in the present case, the State attempts to deny the right of access in order to inhibit
the disclosure of sensitive information, it must be shown that the denial is necessitated by a
compelling governmental interest, and is narrowly tailored to serve that interest.

RULE OF LAW- a state statute requiring judges to exclude the press and general public from the
courtroom during testimony of a victim under 18 years of age involving specific sexual offenses
violates the 1st Amendment of the Constitution.

The desire to inhibit sensitive information pertaining to the underage victims of sex crimes is not
such an interest as to require mandatory disclosure- the determination must be made on a case-
by-case basis.

Press-Enterprises Co. v. Superior Court

The right asserted here is not the D’s 6 th Amendment right to a public trial since the D requested
a closed preliminary hearing. Instead, the right asserted here is that of the public under the 1 st
Amendment.
--The qualified 1st Amendment right of access to criminal proceedings applies to preliminary
hearings as they are conducted in California. (the 1 st Amendment question cannot be resolved
 solely on the label we give the event i.e. ‘trial’ or otherwise, particularly where the preliminary
hearing functions much like a full-scale trial.

Broadcasting Legal Proceedings

The right of access to trials and pretrial hearings does not incorporate any freedom for the
media to use a particular technology to cover such proceedings.

Chandler v. Florida

Issue- whether, consistent with constitutional guarantees, a state may provide for radio,
television, and still photographic coverage of a criminal trial for public broadcast,
notwithstanding the objection of the accused.

The Supreme Court ruled that a state could permit broadcast and still photography coverage of criminal
proceedings, since cameras and microphones in the courtroom were no longer an inherent violation of a
defendant's 14th

Amendment rights, as opposed to the earlier ruling in Estes v. Texas . Moore explains, "in Chandler two
men were convicted of conspiracy to commit burglary, grand larceny, and possession of burglary tools
after they were charged with breaking and entering a popular Miami Beach restaurant. (Both were
Miami Beach police officers at the time of their arrests.) The trial attracted considerable media
attention; cameras were in the courtroom, as permitted under experimental Florida Supreme Court
rules (Moore, p. 452)."

Nowadays, nearly all states and even the federal courts allow cameras in the courtroom, with
only limited restrictions. Since the cable network Court TV started broadcasting in the early '90s,
there seem to be no major complaints of lack of due process or sensationalism. Despite
upholding broadcasting and photographic coverage of criminal proceedings in state courts, Fed.
Rule of Criminal Procedure 53 states that such activity ‘shall not be permitted’ in federal
courtrooms.

Grand Juries

Both the preliminary hearing and grand jury review test the government’s case for the quantum of
proof required to go to trial, although each usually requires only proof of probable cause (as opposed
to proof beyond a reasonable doubt) that a crime has been committed and that a particular defendant
committed the crime.

Grand Jury Preliminary Hearing

-Secret -Public
-Normally hear only the prosecutor’s case and -Adversary proceedings in which the defense can
prospective defendants and defense counsel are
excluded from the grand jury proceedings
-Occur without judicial participation
-Grand jurors (citizens of the local community)
determine sufficiency of the evidence.
challenge the prosecution’s case
-Judges preside over
-Judges determine sufficiency of the evidence

The US Supreme Court has held that the States are not required to abide by the grand jury requirements
imposed on the federal courts, although half the States have their own constitutional provisions or
statutory requirements for grand jury indictment.

I. Selection of the Grand Jury

Federal juries consist of between sixteen and twenty-three jurors, twelve of whom must agree to indict
the D for any charge. Other jurisdictions utilize much smaller grand juries but all jurisdictions require an
indictment be based on the concurrence of at least a majority of the grand jurors empaneled to review
the charges.

Defense counsel does not participate in the selection of the grand jury. Any deficiencies in the
composition of the grand jury must be raised when the D is brought to trial (objections cannot be raised
for the first time on appeal). Challenges to the composition of the grand jury are made by a motion to
dismiss or quash the indictment returned by the grand jury.

Generally, courts have recognized only two proper grounds for objecting to the composition of the
grand jury: (1) one or more of the grand jurors failed to meet the statutory qualifications for service, (2)
the process for selecting grand jurors violated constitutional standards.

Although States are not required to utilize grand juries, if they do chose to do so, the Equal Protection
Clause of the US Constitution requires that no state may deliberately and systematically exclude
individuals because of race, class, gender, or national origin.

The US Supreme Court has not determined whether the 6 th Amendment requirement that the jury be
drawn from a ‘fair cross-section of the community’ applies to grand juries. Constitutional infirmities of a
grand jury may invalidate a conviction even though the trial jury was legally constituted and guilt was
established beyond a reasonable doubt.

2. Scope of the Grand Jury Investigation

Once the judge has charged the grand jury, the grand jury independently conducts its investigation of
alleged criminal offenses. Unlike preliminary hearings, the judge does not preside over grand jury
proceedings.

In the absence of the judge, the prosecutor will focus the grand jury’s attention on the task at hand by
(1) submitting an indictment, which is a written accusation of crime prepared by the prosecutor, and (2)
suggesting what witnesses and evidence the grand jury should consider. Until the actual trial begins,
Double Jeopardy does not protect the accused from undergoing successive grand jury investigations.
Grand Jury Secrecy

Generally, the prosecutor and the grand jurors are prohibited from disclosing grand jury testimony
except when authorized by court order.

The Grand Jury as a Shield- Sufficiency of the Evidence

The 5th Amendment provides in part, ‘no person shall he held to answer for a capital, or otherwise
infamous crime, unless on a presentment or indictment of a Grand Jury. In the federal system, the
constitutional requirement for grand jury indictment has continuing vitality. When a properly
constituted grand jury returns an indictment, courts will not review the adequacy of evidence presented
to a grand jury.

Costello v. United States

At Costello’s (D) trial, the government called 144 witnesses and introduced 368 exhibits, all of which
related to business transactions and expenditures by the Costello’s. 3 government agents, whose
investigations had produced the evidence used against Costello at trial summarized the evidence already
introduced and introduced computations showing, if correct, that the Costellos had received far greater
income than they had reported. The 3 agents were the only witnesses before the grand jury. Costello
moved to dismiss the indictment on the ground that the only evidence before the grand jury was
hearsay since the officers had no firsthand knowledge of the transactions upon which their
computations were based.

RULE OF LAW- An indictment returned by a legally constituted and unbiased grand jury, if valid on its
face, is enough to call for trial of the charge on the merits, regardless of the fact that the only evidence
before the grand jury was hearsay.

Neither the 5th Amendment nor any other constitutional provisions prescribes the kind of evidence upon
which grand juries must act. The grand jury convenes as a body of lay people, free from technical rules.
Costello’s conviction is affirmed.

Misconduct Challenges

Following Costello, some federal courts employed a ‘prosecutorial misconduct’ rationale to exert control
over the type of the evidence presented to the grand jury. This use of the judiciary’s supervisory power
was rejected in US v. Williams.

United States v. Williams

At a grand jury proceeding, the prosecutor (P) failed to inform the panel about potentially exculpatory
evidence when trying to get an indictment. Williams (D) then sought to have the indictment quashed on
the grounds of prosecutorial misconduct. The court of appeals eventually ruled for Williams and the
Government appealed.

RULE OF LAW- Prosecutors are not required to present exculpatory evidence at grand jury proceedings.
Courts have the supervisory power to dismiss indictments due to misconduct before the grand jury.
However, this misconduct must amount to a violation of a rule drafted and approved by this Court or by
Congress to ensure the integrity of the grand jury. Since the grand jury is an institution separate from
the courts, the supervisory power of courts does not extend to compel standards of prosecutorial
conduct. Grand juries investigate merely on suspicion that the law is being broken and do not require
any authorization from the courts. Thus, the operational separateness of the grand jury shows that
judicial supervisory powers may only be invoked in limited circumstances. Furthermore, the traditional
functioning of the grand jury has always allowed the prosecutor to present only a single side of the case.
Imposing a requirement that the prosecutor present exculpatory evidence would be incompatible with
the grand jury system. Accordingly, the court of appeals is reversed and the case is remanded.

Despite this decision, most state courts which have confronted the issue have imposed a duty on
prosecutors to disclose exculpatory evidence to the grand jury in the unique cases where the prosecutor
has evidence in her files.

The Grand Jury as a Sword

Rather than viewing grand jury indictment as an unnecessary burden, many prosecutors favor use of
grand jury proceedings in hopes of uncovering additional evidence. The seek to use the grand jury’s
broad subpoena power over witnesses and documents.

Unlike suspects or witnesses who are questioned by the police, an individual subpoenaed to appear
before the grand jury has no general right to remain silent or refuse to cooperate. In the absence of a
constitutional provision such as the 5th Amendment privilege against self-incrimination or a common law
communication privilege, the witness must tell what he knows or risk being punished for contempt.

Even if a witness invokes the privilege against self-incrimination, the grand jury may, if authorized by
law, grant the witness immunity and this force an answer to its question.

The grand jury also may issue a subpoena duces tecum, which is a command to a person to produce
writings or objects described in the subpoena. The only constitutional limitations on subpoenas duces
tecum or other grand jury investigative powers are the constitutional rights of individual witnesses. The
accused ultimately named in the indictment is not yet a ‘defendant’ and thus enjoys no rights or
protections beyond that afforded any witness called before the grand jury.

Witnesses Rights Before a Grand Jury

The 4th Amendment provides no protection to witnesses called to testify before a grand jury. The 4 th
Amendment exclusionary rule is inapplicable at a grand jury proceeding, thus witnesses may be
questioned based on evidence derived from illegal searches and seizures.

United States v. Dionisio

A special grand jury convened to investigate possible violations of federal criminal statutes relating to
gambling. In the course of its investigation the grand jury received in evidence certain voice recordings
that had been obtained pursuant to court orders. Approximately 20 persons, including Dionisio (D) were
subpoenaed before the grand jury to give voice exemplars for comparison with recorded conversations
taken pursuant to a court-ordered surveillance. Dionisio (D) refused to give a voice exemplar, claiming
protection under the 4th and 5th Amendments. The district judge ordered Dionisio (D) to give a voice
exemplar. When Dionisio refused, he was held in civil contempt and was committed to custody until he
obeyed the order or until the expiration of 18 months.

RULE OF LAW- Both the initial compulsion of a person to appear before a grand jury and a subsequent
directive to make a voice recording are not unreasonable seizures within the meaning of the 4 th
Amendment.

In regard to the seizure inquiry, a subpoena is not a seizure comparable to a random and abrupt
investigative stop or an arrest. It is an orderly, lawful process without social stigma and under the
supervision of a judge. In regard to the inquiry as to whether an unreasonable search occurred, Katz v.
US held that evidence which is gathered by observing what is exposed to the public requires no
‘reasonable’ inquiry and constitutes no search. The sound of a person’s voice is exposed to the public
and, therefore, a recording of voice, as opposed to content, does not constitute a search. Finally, a grand
jury subpoena is not devoid of constitutional protections.

-In Davis v. Mississippi, the court held that an unlawful seizure could not be used to obtain fingerprints
to be used to determine whether a person is the suspected criminal. Dionisio allows the grand jury to do
exactly that on the rationale that a subpoena is not a seizure and that voice prints are not a seizure. The
grand jury is thus in a position to gain real evidence from a potential D prior to any finding of probable
cause.

Fifth Amendment Rights Applicable to Testimony

Any witness appearing before a grand jury may assert the 5 th Amendment privilege against self-
incrimination, but the witness has no right to receive Miranda warnings.

United States v. Mandujano

Mandujano (D) was subpoenaed to testify before a grand jury investigating the drug traffic in the local
area. Before testifying, he was warned of his general duty to answer, his right not to answer
incriminatory questions, and of possible perjury liability for false answers. Mandujanp denied having
attempted to purchase any heroin during the previous 5 months. Subsequently, he was indicted for
attempting to distribute heroin and for perjury before the grand jury. The district judge granted
Mandujano’s motion to suppress evidence of his perjured testimony at trial on the ground that the
grand jury prosecutor failed to give Miranda warnings before questioning a ‘virtual’ or ‘putative’
defendant. The court of appeals affirmed and the government appealed.

RULE OF LAW- Miranda warnings need not be given at grand jury proceedings because a witness under
oath has no privilege to give perjured testimony even when the government exceeds its constitutional
authority in making the inquiry.
Absent a claim of privilege, the duty to give testimony remains absolute. In the constitutional process of
securing a witness’s testimony, perjury simply has no place whatsoever. To extend the concepts of
Miranda would require that a witness be told that there was an absolute right to silence, but there has
never been such a right before a grand jury. A grand jury witness has an absolute duty to answer all
questions subject only to a 5th Amendment claim. Further, a grand jury witness has no right to counsel
because it is not a criminal proceeding against the witness.

Notes-

US v. Washington- held that a witness need not be warned that he is a target of the grand jury
investigation.

The Subpoena Duces Tecum

1. The Reasonableness Requirement

United States v. R. Enterprises

As part of a probe into allegations of interstate transportation of obscene materials into Virginia, a
federal grand jury subpoenaed corporate documents from Model Magazine Distributors (D), R.
Enterprises (D) and MFR (D). All 3 companies were wholly owned by the same individual, and Model (D)
had transported sexually explicit videos to retailers in Virginia. All 3 companies moved to quash the
subpoenas. The district court denied the motions. The court of appeals reversed on grounds that the
subpoenas failed to meet the standards of relevancy, admissibility, and specificity articulated in US v.
Nixon for trial subpoenas. The Government appealed.

RULE OF LAW- a party challenging a grand jury subpoena on relevancy grounds must demonstrate that
there is no reasonable possibility that the category of materials the government seeks will provide
information relevant to the general subject of the grand jury’s investigation.

Absent a strong showing to the contrary, the grand jury is presumed to be acting within the legitimate
scope of its authority. The purpose of the grand jury is to inquire into all information that might possibly
bear on whether probable cause exists that an indictable crime has been committed. The grand jury’s
operation is therefore generally unrestrained by the technical procedural and evidentiary rules
governing the conduct of criminal trials, including the rules of relevancy, admissibility, and specificity of
documents sought by a particular subpoena. Because Model and Enterpriese and MFR share a common
location and ownership, it was reasonable for the district court to conclude that the business records of
R. Enterprieses and MFR would be relevant to the grand jury’s investigation into the transportation of
obscene materials into Virginia.

The grand jury’s mandate as an investigative body and its status as an ‘arm of the court’ is said to justify
its authority to issue subpoenas.

Self-Incrimination by Compliance with Subpoena Duces Tecum

The 5th Amendment applies when 3 conditions are met: (1) the government seeks to ‘compel’
compliance with its demand that the D produce documents or tangible items; (2) the compelled material
is ‘testimonial’ in nature; and (3) the material ‘incriminates’ the person required to produce it.
(testimonial because the act of production may establish the existence of the documents, the D’s
control over the documents, or may constitute authentication of the documents).

United States v. Doe

Issue- whether, and to what extent, the 5 th amendment privilege against self-incrimination applies to the
business records of a sole proprietorship.

Respondent objected to a series of subpoenas directing him to produce business records, including
billings, ledgers, canceled checks, telephone records, contracts, and paid bills. The district court
sustained the respondent’s 5th Amendment challenge, noting that the act of producing the documents
had ‘communicative aspects’ which could prove incriminating since the respondent would thereby be
required to ‘admit that the records exist, that they are in his possession, and that they are authentic.’

We conclude that the Court of Appeals erred in holding that the contents of the subpoenaed documents
were privileged under the 5th Amendment. The act of producing the documents at issue in this case is
privileged and cannot be compelled without a statutory grant of the use immunity.

Doe v. United States

Doe (D), the object of a grand jury investigation, was served with a motion to compel his signature
authorizing the release of banking information. The banks, headquartered in foreign countries, had
refused to honor a subpoena and insisted upon Doe’s authorization. The authorization allowed the
disclosure of information, if any existed. Doe refused to sign, contending such would violate his right
against self-incrimination. He was held in contempt, and the court of appeals affirmed.

RULE OF LAW- written consent to release information, if in existence, is not testimonial and thus can be
compelled without violating the freedom against self-incrimination.

The release does not acknowledge the existence of any records. It does not acknowledge that the D
possesses any records, and it does not authenticate any records. Thus, the act of consent does not
equate with testimonial evidence and is not subject to the self-incrimination analysis. Thus, the
contempt citation was proper.

United States v. Hubbell

Hubbell (D) pled guilty and was sentenced to prison. In the plea agreement, Hubbell agreed to provide
information about matters related to the Whitewater investigation. While Hubbell was serving his
sentence, the Independent Counsel (P) served him with a subpoena requesting the production of certain
documents. Hubbell refused, invoking his 5 th Amendment right against self-incrimination. The
government (P) obtained a court order directing Hubbell to produce the documents under a grant of
immunity. The documents were then produced. A second prosecution arose out of information gained
from these documents. The district court dismissed the indictment, holding that the evidence was
derived from the testimonial aspects of the immunized act of producing documents. The court of
appeals vacated that judgment and remanded for the lower court to hold a hearing to establish the
extent of the Government’s independent knowledge of the documents. On remand, the Government (P)
entered into a conditional plea bargain with Hubbell and the United States Supreme Court granted the
Government’s request for a writ of certiorari.

RULE OF LAW- the 5th Amendment prevents the government from compelling a suspect to produce
incriminating documents under a grant of immunity and then prosecuting that suspect using
information gained from those incriminating documents.

The respondent’s motion to dismiss the indictment on immunity grounds must be granted unless the
government proves that the evidence it used in obtaining the indictment and proposed to use at trial
was derived from legitimate sources ‘wholly independent’ of the testimonial aspect of respondent’s
immunized conduct in assembling and producing the documents described in the subpoena. The
indictment against the respondent here, must be dismissed.

Joinder and Severance

Most state criminal procedure rules as well as the FRCP allow a prosecutor to combine offenses or
defendants simply by charging multiple offenses of D’s in the same indictment or information. In
addition, if offenses or parties are charged separately but initially could have been joined in a single
indictment or information, the criminal rules permit a trial judge the discretion, with or without a
motion, to consolidate the charges for trial in a single charging document.

Once multiple offenses or defendants are joined, either by charging document or by court order, the
defense or prosecution may ask the court to sever them from one another.

Rule 14 leaves the determination of risk of prejudice and any remedy that may be necessary to the
sound discretion of the trial court. If prejudice develops at trial after a motion to sever has been
overruled, the D should renew the motion and move for a mistrial.

The exercise of prosecutorial discretion to join or not to join offenses or defendants may have
constitutional consequences relating to 5th amendment double jeopardy and collateral estoppel issues,
as well as 6th Amendment Confrontation Clause problems.

Joinder and Severance of Offenses

1. Joinder and Severance of Offenses under the Rules of Criminal Procedure

While a prosecutor has discretion to joinder or sever offenses, the rules permit the defendant to seek a
severance of the offenses that have been joined in a common prosecution.

Fed.R.Crim.O 8(a) allows but does not require joinder of offenses- it states that 2 or more offenses may
be charged together against a D if they are based upon: (1) the same act or transaction, (2) a series of
acts or transactions constituting a common scheme, or (3) the offenses being of similar character.
-Because the rule is permissive rather than mandatory, a D has no right to have all alleged offenses tried
together.

Joinder is usually upheld when the crimes are closely related in character, circumstances, and time. (E.g.
offenses show near identical modus operandi).

Where joinder is otherwise proper under the rules of procedure, the D must prove prejudice to justify
and obtain a severance.

If D wants to assert antagonistic defenses to the joinable charges, i.e. 2 assaults and wants to claim an
alibi for one and insanity for the other, because one of the defenses is likely to diminish the credibility of
the other, prejudice may be asserted in support of a motion for a severance.

Double Jeopardy Implications for the Joinder of Offenses

The Double Jeopardy Clause of the 5 th Amendment shields a D from even the risk of being punished
twice for the same offense. Double jeopardy protections depend on whether 2 offenses are considered
to be the ‘same offense.’

Missouri v. Hunter- a constitutional violation does not occur if the legislature intended to impose
cumulative punishments for a single act which constitute more than one crime.

When the legislative intent to impose multiple charges or punishments is ambiguous, the Supreme Court
test from Blockburger v. United States governs whether multiple offenses and punishments in a single or
successive prosecutions are constitutionally permissible. Blockburger held that two offenses do not
constitute the same offense when each offense requires proof of elements that the other offense does
not. The test may be satisfied despite substantial overlap in the evidence used to prove the offense.

On the other hand, two offenses do constitute the same offense when only one of the offenses requires
proof that the other offense does not- a lesser-included offense is the same as the greater offense
because by definition the greater offense includes all the elements of the lesser.

Whalen v. United States

Petitioner was convicted of rape, and of killing the same victim in the perpetration of rape. He was
sentenced to consecutive terms of imprisonment of 20 years to life for 1 st degree murder and 15 to life
for rape.

Issue- whether the imposition of cumulative punishments for the 2 offenses was contrary to federal
statutory and constitutional law.

It is the petitioners position that his sentence for the offense of rape must be vacated because that
offense merged for purposes of punishment with the felony-murder offense and that imposing on him
multiple punishments for the same offense in violation of the Double Jeopardy clause of the 5 th
Amendment.
Rape and the killing of a person in the course of rape in DC are separate statutory offenses for which
punishments are separately provided.

The court discussed the Blockburger test- whether there are two offenses or only one is whether each
provision requires proof of a fact which the other does not.

A conviction for killing in the course of a rape cannot be had without proving all the elements of the
offense of rape.

Collateral Estoppel Implications for Joinder of Offenses

Where there is a single criminal transaction or activity, it may be divided into multiple statutory crimes.
If the prosecution chooses to divide the offenses into separate prosecutions or decides to bring the
charges successively rather than simultaneously, an acquittal on one offense may preclude a trial on the
other offense under the doctrine of collateral estoppel. This doctrine provides that determination of a
factual issue in a D’s favor at one proceeding may estop the prosecution from disputing the fact in
another proceeding against the same D.

For collateral estoppel to apply, the D must be contesting re-litigation of an issue of ultimate fact
previously determined in that D’s favor by a valid and final judgment.
(1) The second prosecution must involve the same parties as the first trial. A D cannot estop the
prosecution from relitigating a fact found against the prosecution in a proceeding against a different D.
(2) The factfinder must have ‘actually and certainly’ determined the issue of fact in the earlier
proceeding.

The most difficult problem in applying collateral estoppel is ascertaining what facts were established in
the earlier case- only those fact determinations essential to the first decision are conclusive in later
proceedings.

Ashe v. Swenson

6 men playing poker were robbed by 4 armed men. Ashe (D) was tried for robbery of Knight, one of the
card players. At trial, persuasive evidence was not given as to Ashe’s guilt and he was acquitted. 6 weeks
later, Ashe was tried for robbery of another participant in the same poker game. Ashe’s motion to
dismiss based on his previous acquittal was overruled. Witnesses were essentially the same but gave
substantially stronger testimony on Ashe’s identity. For example, 2 witnesses who at the first trial had
been wholly unable to identify the petitioner as one of the robbers, now testified that his features, size,
and mannerisms matched those of one of their assailants. One weak witness from the 1 st trial was not
called. Ashe was convicted and sentenced to 35 years imprisonment. He appealed, urging that the
determination that he was not present at the robbery by the 1 st jury collaterally estops under the
guarantee against double jeopardy a retrial of that issue.

RULE OF LAW- collateral estoppel is part of the 5 th Amendment’s guarantee against double jeopardy.
When an issue of ultimate fact has once been determined by a valid and final judgment, the issue
cannot against be litigated between the same parties in any future lawsuits. In criminal cases, collateral
estoppel is not to be applied hypertechnically. Where there has been a general verdict of acquittal, the
court must examine the record of the prior proceeding and conclude whether the jury could have
grounded its verdict upon an issue other than that which the defendant seeks to foreclose from
consideration. ‘The single rationally conceivable issue in dispute before the jury was whether Ashe had
been one of the robbers.” They found he was not. Under double jeopardy, that issue cannot be
relitigated. Reversed.

Note- prior to this case, double jeopardy was generally thought of as applying only to applications of res
judicata. In other words, it prevented relitigation of an entire action. The present action represented an
expansion of the prohibition against double jeopardy, applying it to collateral estoppel’s concerns of a
previously litigated issue as opposed to a complete case.

Where a previous judgment of acquittal was based upon a general verdict, as is usually the case, this
approach requires a court to ‘examine that record of a prior proceeding, taking into account the
pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have
grounded its verdict upon an issue other than that which the D seeks to foreclose from consideration.
The inquiry must be ‘set in a practical frame and viewed with an eye to all the circumstances of the
proceedings.

In Ashe, the Court believed that it was possible to identify why the 1 st robbery trial resulted in an
acquittal- although there was no doubt that a robbery had occurred and that Knight had been a victim of
that robbery, the only issue at the first trial was whether Ashe was the person who robbed Knight.

-A prior acquittal in a criminal case does not preclude a subsequent civil forfeiture case.

Joinder and Severance of Defendants

1. Joinder of Defendants under the Rules

The rules of criminal procedure address joinder and severance proceedings where multiple defendants
are jointly alleged to have committed one or more crimes. The policy behind this type of rule is
improved judicial economy and efficiency, since one trial is faster and less expensive than 2.

-Joinder of defendants is permissive and severance is discretionary with the court. A severance may be
available upon specific allegations of prejudice. A more general request for severance may be grounded
on the proposition that the D’s should not have been joined in the first place. This is similar to
misjoinder of unrelated offenses.

In most jurisdictions, joinder of D’s is permitted where the D’s allegedly participated in either the
same act or transaction or in the same series of acts or transactions. (Unlike the rules on joinder of
offenses, in order to be joined defendants must have committed offenses which are part of the same
series of acts rather than being of a similar character).
Joinder looks to the factual connecting link. Even where the connecting link is absent and joinder is not
permitted under the rules, such a misjoinder is subject to harmless error analysis.

Severance of defendants based on Prejudicial aspects of a joint trial are commonly considered as (1) the
‘spill over’ effect of 1 D’s heineous conduct affecting the jury’s view of the other co-D’s, (2) the dangers
of any one attorney not having total control over the defense (each D has own attorney and own view of
the case)

-Specific grounds for severance of D’s for factual prejudice relate to (1) the weight or type of proof as to
one defendant, (2) antagonistic defenses or positions, (3) the desire to call codefendant as a witness,
and (4) confession of a codefendant.

Zafiro v. US- “it is well settled that D’s are not entitled to a severance merely because they may have a
better chance of acquittal in separate trials.”
-Evidence that is probative of a D’s guilt but technically admissible only against a codefendant also might
present a risk of prejudice. Conversely, a D might suffer prejudice if essential exculpatory evidence that
would be available to a D tried alone were unavailable in a joint trial.

Even if there is some risk of prejudice, it may be curable with proper instructions.

Constitutional Implications for the Joinder of Defendants

In a joint trial, the admission of a codefendant’s extrajudicial confession incriminating the D violates the
D’s 6th amendment right to confrontation when the codefendant does not testify at trial. Where the
codefendant does testify, there is no confrontation issue because the codefendant is subject to cross-
examination. Several alternatives exist for the prosecution when a codefendant has confessed but may
not testify at trial:
(1) grant a severance to the nonconfession defendant. In this way, the codefendant’s confession will not
be used against the D.
(2) the prosecution not use the codefendants confession in its case-in-chief in a joint trial. If the
confessing codefendant testifies, the prosecution could then impeach the codefendant with the
statements made in the confession. This would not constitute denial of confrontation even if the
codefendant denied making the statement.
(3) Redaction- all references to the moving, nonconfessing defendant are deleted. To be effective, the
deletion must not call attention to the fact that the statement implicates other persons who are
obviously at trial.

Gray v. Maryland

Gray and a co-defendant were both indicted for murder. Gray’s (D) motion for a separate trial was
denied, and Gray (D) was convicted after the co-defendant’s redacted confession incriminating Gray was
introduced at the joint trial with a limiting instruction. Gray appealed the verdict, claiming that under
Bruton v. United States, his 6th Amendment rights had been violated.
RULE OF LAW- Redacted confessions that replace the proper name with an obvious blank, the word
‘delete’, a symbol, or similarly notify the jury that a name has been deleted, violate a D’s 6 th Amendment
rights if introduced into evidence insulated from cross-examination.

Under Bruton, the introduction at trial of the powerfully incriminating extrajudicial statements of a co-
defendant who does not testify and cannot be cross examined violates a D’s 6 th Amendment rights. The
introduction of the redacted confession of Gray’s co-defendant with the blank prominent on its face
‘facially incriminated’ Gray. There was no questions of policy to be considered here, since the
connection of the D to the confession did not depend on the introduction of other evidence later in the
trial. This case was not like Richardson v. Marsh where the confession of the co-defendant had been
redacted, eliminating all reference to his co-defendant and any indication that anyone else at all was
implicated in the crime, and becoming incriminating only when linked to other evidence. The powerfully
incriminating effect of an out-of-court accusation creates a special, and vital, need for cross-
examination. Redactions that simply replace a name with a blank leave statements that, considered as a
class, so closely resemble Bruton’s unredacted statements that, in our view, the law must require the
same result. Reversed.

Bruton v. United States- 2 D’s accused of participating in the same crime and tried jointly before the
same jury. 1 of the D’s had confessed. His confession named and incriminated the other D. The trial
judge issued a limiting instruction, telling the jury that it should consider the confession as evidence only
against the codefendant who had confessed and not against the D named in the confession. Bruton held
that, despite the limiting instruction, the Constitution forbids the use of such a confession in the joint
trial.
-Evans and Bruton- tried jointly for robbery. Evans did not testify but the gov’t introduced into evidence
Evans’ confession, which stated that both he (evans) and Bruton together committed the robbery. The
trial judge told the jury to consider the confession as evidence only against Evans and not Bruton. This
court held that despite the limiting instruction, the introduction of Evans’ out of court confession at
Bruton’s trial had violated Bruton’s right protected by the 6 th Amendment to cross-examine witnesses.

Speedy Trial

The 6th Amendment right states that ‘in all criminal prosecutions, the accused shall enjoy the right to a
speedy trial. In any jurisdiction, there are frequently three sources of speedy trial rights: court rules for
docket control, statutes specifying time periods especially in pretrial stages, and constitutional
guarantees of a speedy trial.

A Delay in Bringing the Charge

5th Amendment or 14th Amendment due process protects a D from delay between commission of the
crime and the earlier of the arrest, indictment, or information.

To establish a federal due process violation based on pre-charge delay, a D must show that (1) the
delay resulted in actual prejudice to the ability of the defense to present its case, and (2) the
prosecution’s conduct was intentional and motivated by an intent to harass the D or to gain a tactical
advantage over the D.
-The burden of establishing actual prejudice is a heavy one, with the D having to provide proof that the
delay substantially prejudiced the defense. The mere passage of time is insufficient. In addition, even if
the D is able to show actual prejudice, there must be evidence that the delay was used deliberately by
the prosecution to gain a tactical advantage.

United States v. Lovasco

Although the offenses of possessing firearms stolen from the US mail and dealing in firearms without a
license allegedly occurred between July 25 and August 31, 1973, Lovasco (D) was not indicted for those
crimes until March 6, 1975. The intitial report noted that he told Gov’t (P) agents just one month after
the alleged commission of the crimes that he had possessed and sold 5 of the stolen guns. By that time,
there was strong evidence linking him to the remaining 3 weapons. However, the agents were unable to
confirm or refute his claim that he had found the guns in his car when he returned to it after visiting his
son, a mail handler, at work. Little additional information was uncovered in the 17 months that followed
before initiation of prosecution. Thus, the Dist. Ct. granted Lovasco’s motion to dismiss the indictment
on the ground that the unreasonable and unnecessary delay in initiating prosecution had prejudiced his
defense and thus violated his due process rights. Evidence showed that 2 witnessed whom Lovasco
claimed would have helped his defense had died, one 9 months and the other more than a year after
the initial investigative report on the crimes was completed.

RULE OF LAW- To prosecute a criminal defendant following investigative delay does not deprive him of
due process, even if his defense might have been somewhat prejudiced by the lapse of time.

Proof of actual prejudice is necessary prerequisite to and makes a due process claim concete and ripe
for adjudication, but it does not make the claim automatically valid. The determining question is
whether compelling a particular D to stand trial after delay in a particular case violates those
‘fundamental conceptions of justice. It does not in cases like this. Reversed.

Note- the Court is careful not to say that prejudicial reaccusation delay could never be a due process
violation. This may prove most important in the future since the 6 th amendment right to a speedy trial
has been found inapplicable to preindictment delays.

US v. Marion-Held that as far as the 6th Amendment is concerned, such delay is wholly irrelevant, since
our analysis of the language, history, and purpose of the Clause persuaded us that only a ‘formal
indictment or information or else the actual restraints imposed by arrest and holding to answer a
criminal charge engage the particular protections of that provision.

‘To prosecute a D following investigative delay does not deprive him of due process, even if his defense
might have been somewhat prejudiced by the lapse of time.’

Delay in Bringing Defendant to Trial

The duty of executing the right is the responsibility of the prosecution. The constitutional right to a
speedy trial includes the right to speedy sentencing and a speedy appeal.
Barker v. Wingo- The court noted that the right to a speedy trial ‘is generically different from any of the
other rights enshrined in the Constitution for the protection of the accused’ because there is a societal
interest in providing a speedy trial which exists separate from, and at times in opposition to, the
interests of the accused.

The right to a speedy trial attached from the earlier of the date of the indictment or information, or the
date of the arrest, i.e. when the person becomes ‘accused.’ Similarly, the right to a speedy trial attaches
when a detainer is lodged against an accused who is in custody on other charges.
-Once the right to a speedy trial attached, it continues until the charges are dismissed. The time
between the dismissal and a new related charge does not count for purposes of the right to a speedy
trial, although due process may afford some protection if the D can identify prejudice from the delay.

In Barker, the Court held that any inquiry into a constitutional speedy trial claim requires a balancing
on an ad hoc basis of at least 4 factors:

(1) The length of the delay

(2) The reasons for the delay
(3) Amount of prejudice suffered by the D
(4) The amount of prejudice suffered by the D

(Because of this balancing approach, it is impossible to determine with precision when the constitutional
right has been denied).

Barker held that the length of the delay serves as a threshold requirement or ‘triggering mechanism’ for
finding a violation of the speedy trial right. Although the length of the delay alone does not establish a
constitutional violation, a court need not inquire into the other factors unless it finds the delay to be
presumptively prejudicial.

In the absence of a showing of bad faith or dilatory motive, the prosecution is not responsible for delays
attributable to its own acts.

A period of delay attributable to tactics by the defendant is deemed a waiver of the right to a speedy
trial for that period of delay (D fleeing and attempting to avoid arrest, D’s pretrial motions).

Barker stated that a court must weigh any prejudice to the D in light of the interests protected by the
speedy trial guarantee: preventing oppressive pretrial incarceration, minimizing anxiety of the accused,
and limiting impairment to the defense.

Barker expressly stated that dismissal with prejudice is the only possible remedy for a violation of the 6th
Amendment speedy trial right. Still, another remedy is to provide a writ of mandamus to compel a trial
court to set a trial date for the D’s case.

Doggett v. United States

Issue- whether the delay of 8 ½ years between petitioner’s indictment and arrest violated his 6 th
Amendment right to a speedy trial. Holding- Yes.

Petitioner was indicted in February of 1980 for conspiring with several others to import and distribute
cocaine. On March 18, 1980, 2 police officers set out under orders to arrest Doggett at his parent’s
house in NC, only to find out that he was not there. His mother told the officers he had left for Colombia
4 days earlier. To catch Doggett on his return, Driver sent word of his outstanding arrest warrant to all
US Customs stations and to a number of law enforcement organizations. He also placed his name in a
computer network that helps Custom’s agents screen people entering the country. One year later he
passed through customs without being stopped and settled in Virginia. Six years later and 8 ½ years after
his indictment, the government found out he was there by running a credit check, and he was arrested
and prosecuted.

The Magistrate found that the delay between Doggett’s indictment and arrest was long enough to be
presumptively prejudicial, that the delay clearly was attributable to the negligence of the government
and that Doggett could not be faulted for any delay in asserting this right to a speedy trial, there being
no evidence that he had known of the charges against him until his arrest. However, the Magistrate also
found that Doggett made no affirmative showing that the delay had impaired his ability to mount a
successful defense or had otherwise prejudiced him. In his recommendation to the district court, the
Magistrate contended that this failure to demonstrate particular prejudice sufficed to defeat Doggett’s
speedy trial claim. The District Court took the recommendation and denied Doggett’s motion.

4 relevant separate enquiries of the Speedy Trial Clause: (1) whether delay before trial was uncommonly
long, (2) whether the gov’t or the criminal D is more to blame for that delay, (3) whether, in due course,
the D asserted his right to a speedy trial, and (4) whether he suffered prejudice as the delay’s result.

It was reversible error because negligence isn’t automatically tolerable simply because the accused
cannot demonstrate exactly how it has prejudiced him.

When the gov’ts negligence thus causes delay 6 times as long as that generally sufficient to trigger
judicial review, and when the presumption of prejudice, albeit unspecified, is neither extenuated as by
the D’s acquiescence, nor persuasively rebutted, the D is entitled to relief.

Statutory Prompt Disposition Provisions

In addition to the constitutional speedy trial standard and interstate compacts, many state legislatures
and the Congress have enacted speedy trial legislation which establishes specific time limits for
completing stages of a criminal prosecution.

I.e. the Federal Speedy Trial Act, 18 USC 3161, requires that an arrested D be formally charged within 30
days after the arrest and that the D’s trial begin within 70 days after the formal charge was filed. In
addition, the trial cannot begin earlier than 30 days from the date the D first appears before the court
unless the D consents in writing to an earlier trial. Unlike the constitutional standard which makes the
passage of time a ‘triggering mechanism’ the statute makes the passage of time dispositive of whether
there is a violation. Most speedy trial statutes, like the federal act, do not require a D to show either that
he demanded a speedy trial or that the effect of the delay was prejudicial.

Certain types of pretrial delays are automatically excluded from the computation of legislative time
limits- periods of delay like the absence or unavailability of the D or an essential witness. Continuances
are granted.

The key determination of a trial judge when the act’s time limits are not met and the charges against the
D must be dismissed is whether the dismiss must be with or without prejudice. The judge will consider 3
factors in exercising discretion to dismiss the charges with or without prejudice: (1) the seriousness of
the offense, (2) the circumstances leading to dismissal, (3) the effect of reprosecution on the
administration of justice and the legislation.

Is a D permitted to waive the requirements of the Speedy Trial Act? Zedner v. US- the Supreme Court
stated that under 3162(a)(2), a waiver of the right to dismissal for a past statutory violation occurs when
a D fails to file a motion for dismissal before trial or entering a guilty plea. However, that provision does
not indicate that Congress intended to permit prospective waivers, i.e. a D cannot opt out of the Act’s
requirements prior to a violation.

Discovery and Disclosure

D’s , one the grand jury investigation is over, generally are not even entitled to the transcribed record of
the grand jury proceeding unless and until a grand jury witness later testifies for the government at trial.

A D, however, has many other avenues for discovery:

(1) Motion for a Bill of Particulars- requests more specific information about the charge described in the
indictment or information upon which the accused will stand trial. A bill of particulars might ask for a
description of the particular form of murder and the specific method by which the alleged murder was
committed.

The granting of a Bill of Particulars is largely discretionary with the judge.

2) Although discovery is not an avowed purpose of the preliminary hearings, discovery is an inherent
byproduct of the requirement that the prosecution present at least a prima facie case to a judicial
officer. Prosecutors however, limit the defense opportunity for discovery at the preliminary hearing by
presenting the minimum evidence required to certify the case for trial.
3) Discovery may occur as part of the give and take of plea bargaining between defense counsel
and prosecutor.
4) Some prosecutors use an ‘open office’ – they voluntarily discuss the case and make
documentary and real evidence available for inspection by the defense.

In the absence of voluntary disclosure, the parties must ask the court to order pretrial discovery. When
granting a motion for discovery the court will specify the time, place, and manner of making the
discovery as well as additional terms and conditions as are required to prevent confusion or
misunderstandings.
-Once the court orders discovery, the parties have a continuing duty to disclose, as it becomes available,
any additional evidence or material covered by the discovery order.

Constitutional Discovery

The US Constitution requires disclosure of certain information possessed by the government. In Brady v.
Maryland, the Court held that ‘the suppression by the prosecution of evidence favorable to an accused
upon request violates due process where the evidence is material either to guilt or punishment.

United States v. Bagley

Issue- the standard of materiality to be applied in determining whether a conviction should be reversed
because the prosecutor failed to disclose requested evidence that could have been used to impeach
Government witnesses.

Respondent Bagley was indicted for violating federal narcotics and firearm statutes. Before trial,
respondent filed a discovery motion, requesting whether any governmental witnesses had been
compensated, in any way, for their testimony. The government replied that they had not. Two of the
government’s witnesses, O’Conner and Mitchell were state law enforcement officers who had been
working undercover to assist the federal Bureau of Alcohol, Tobacco and Firearms.

In a subsequent habeas corpus action, the district court found that the prosecution failed to disclose the
existence of agreements with O’Connor and Mitchell to pay them for their testimony if it proved to be
useful. These agreements would have provided impeachment material when O’Connor and Mitchell
testified. The Dist. Ct however found that even if the existence of these agreements were disclosed at
trial it would have had no effect upon its finding that the Gov’t had proved beyond a reasonable doubt
that respondent was guilty of the offenses for which he was convicted.

The Brady rule’s purpose is not to displace the adversary system as the primary means by which truth is
uncovered but to ensure that a miscarriage of justice does not occur. Thus, a prosecutor is not required
to deliver his entire file to defense counsel, but only to disclose evidence favorable to the accused that,
if suppressed, would deprive the D of a fair trial.

In Brady, it was exculpatory evidence that the prosecutor failed to disclose, here, it was impeachment
evidence. Impeachment evidence, however, as well as exculpatory evidence, falls within the Brady rule.
Such evidence is ‘evidence favorable to an accused,’ so that, if disclosed and used effectively, it may
make the difference between conviction and acquittal.

The constitutional error, if any, is the Gov’ts failure to assist the defense by disclosing information that
might have been helpful in conducting the cross-examination, however, it only amounts to a
constitutional violation if it deprives the D of a fair trial. A constitutional error occurs, and the
conviction must be reversed, only if the evidence is material in the sense that its suppression
undermines confidence in the outcome of the trial.
Synopsis of Rule of Law. In deciding whether to vacate a sentence on the grounds that impeachment
evidence was not provided to the defense, a court must make a determination of whether the outcome
of the case would have been different.

Cone v. Bell

Cone was sentenced to death and at his trial he asserted an insanity defense, contending that he had
killed 2 people while suffering from acute amphetamine psychosis, a disorder caused by drug addiction.
The State discredited that defense, alleging that Cone’s drug addiction was ‘baloney.’ 10 years later,
Cone learned that the State had suppressed evidence supporting his claim of drug addiction. He now
contends that the State of Tennessee violated his right to due process by suppressing witness
statements and police reports that would have corroborated his trial defense and bolstered his case in
mitigation of the death penalty.

The prosecutor at trial argued that he was not a drug user but a drug dealer. The jury rejected cone’s
insanity defense and found him guilty on all counts.

Both the quantity and quality of the suppressed evidence lends support to Cone’s position at trial that
he habitually used excessive amounts of drugs, that his addiction affected his behavior during his crime
spree, and that the State’s arguments to the contrary were false and misleading. In assessing the
materiality of the evidence suppressed by the State, the Court of Appeals suggested that two facts
outweighed the potential force of the suppressed evidence- (1) the evidence of Cone’s guilt was
overwhelming, (2) the evidence of Cone’s drug use was cumulative because the jury had heard evidence
of Cone’s alleged addiction from witnesses and from officers who interviewed Cone and recovered drugs
from his vehicle. The court of appeals did not thoroughly review the suppressed evidence or consider
what the cumulative effect on the jury would have been. Moreover, in concluding that the suppressed
evidence was not material within the meaning of Brady, the court did not distinguish between the
materiality of the evidence with respect to guilt and the materiality of the evidence with respect to
punishment- an omission that is significant.

The only dispute was whether Cone was ‘sane under the law’- the evidence, even when viewed in light
most favorable to the D and assessed collectively rather than item by item, falls short of being sufficient
to sustain his insanity defense. However, because the evidence suppressed at Cone’s trial may well
have been material to the jury’s assessment of the proper punishment in this case, we conclude that a
full review of the suppressed evidence and its effect is warranted.

Preservation of Evidence

The constitutional right to discovery of exculpatory evidence does not require the government to
preserve all potentially exculpatory evidence for possible discovery by defendants. Evidence must be
preserved when its exculpatory value was apparent before the evidence was destroyed and when the
evidence was of such a nature that the D would be unable to obtain comparable evidence by other
reasonably available means. But Arizona v. Youngblood held that ‘unless a criminal D can shoe bad faith
on the part of the police, the failure to preserve potentially useful evidence does not constitute a denial
of due process of law.

Arizona v. Youngblood

Youngblood (D) was charged with sexual assault. Semen samples taken from the body of the sexual
assault victim were refrigerated, but the samples proved insufficient to identify the blood type of the
perpetrator. The victims clothing was also collected but was not refrigerated or frozen. 2 months later,
police noticed semen stains on the victim’s clothing but tests were inconclusive as to the perpetrator’s
identity, possibly due to the failure to properly preserve the clothing. At Youngblood’s trial, expert
witnesses for both sides testified as to what might have been shown by tests had they been run on the
clothing shortly after it was collected or by later tests had it been properly refrigerated. The court
instructed the jury that if it found that the state (P) had lost or destroyed evidence, they could infer that
tests would have exonerated Youngblood. Nonetheless, the jury convicted Youngblood. The Arizona
Court of Appeals reversed on due process grounds, finding no bad faith by the police, but concluding
that the expert testimony had established that properly preserved samples from the clothing could have
completely exonerated Youngblood. The State (P) appealed to the US Supreme Court.

RULE OF LAW- where police fail to preserve evidence which may be exculpatory, but which also may not
be exculpatory, a due process violation occurs only when the police acted in bad faith.

Where the stat fails to disclose material exculpatory evidence, good or bad faith is irrelevant, but where
the destroyed evidence merely may or may not be exculpatory fundamental fairness only requires that
the police have behaved in good faith. When evidence is only potentially exculpatory, courts are put in
the difficult position of divining the significance of unknown and disputed evidence. Requiring the D to
show bad faith avoids imposing an absolute duty on the police to preserve all material that might
conceivably be of some evidentiary value, confining that duty to cases where the police’s own bad faith
conduct indicates that the evidence may well have exonerated the D. Here, the police’s failure to
preserve semen on the boy’s clothing was not done in bad faith, and the State concealed no information
from Youngblood. Thus, there was no due process violation. Reversed.

Motion to Preserve Portions of Substances for Independent Testing by the Defense

Discovery under Rules and Statutes

Brady’s due process obligation to disclose exculpatory evidence overrides any limitations on discovery
provided for by a jurisdiction’s discovery statutes or rules. If Brady is inapplicable, each state is free to
set discovery requirements as broadly or narrowly as they wish, the only constitutional limitation on the
state’s choice is that the state must be even handed in its treatment of the prosecution and the defense.
–Discovery is a two-way street- it is fundamentally unfair to require a D to divulge the details of his own
case while at the same time subjecting him to the hazard of surprise covering refutation of the very
pieces of evidence which he disclosed to the State.

Motion for Disclosure of Hypnosis or Drug Interview of Potential Witnesses

In the federal system, the Jencks rule strikes an accommodation between protecting witnesses from
possible pretrial harassment, and providing the defense with an opportunity to impeach witnesses who
have made statements inconsistent with their trial testimony. In Jencks v. United States- the Court
exercised its supervisory power over federal courts to require disclosure of prior statements by
witnesses after they testify. Congress enacted the Jencks Act, 18 USC 3500 and the essence of the Jencks
Act Is now contained in rule 26.2 of Fed.R. Crim.P.

Discovery by the Prosecution

Many jurisdictions give the prosecution an unconditional right to be notified prior to trial that the D
intends to raise the defense of insanity and to present expert testimony to support this claim. Fed.R.
Crim.P also mandates the disclosure of D’s intent to raise the defense of alibi, an actual or believed
exercise of public authority on behalf of a law enforcement or federal intelligence agency, or the names
of corporate parties with an interest in the case.

Note- Other than notice of insanity or alibi defense, most states condition the prosecution’s right to
discovery upon whether the D has been granted discovery. Thus, if the D files no motion to discover the
prosecution’s evidence, the prosecution will have no right to discover defense evidence. If however, the
defense has been granted discovery, the prosecution may be granted a reciprocal right to discovery.

Williams v. Florida

Williams (D) was charged with robbery. Prior to his trial, Williams sought a protective order to be
excused from complying with a FL law which requires a D, on written demand of the prosecution, to give
notice in advance of trial if the D intents to claim an alibi, and to furnish the prosecution with
information as to the place he claims to have been and with the names and addresses of the alibi
witnesses he intends to use. Williams wanted to declare his intent to use an alibi but objected to further
disclosure on the ground that the rule would compel him to be a witness against himself in violation of
the 5th and 14th Amendments. The rule also obligated the state to notify a D of any rebuttal witnesses to
the alibi defense the state will call. Failure to comply, by either side, results in the exclusion of the D’s
alibi evidence or the state’s rebuttal evidence. When Williams motion for the protective order was
denied, he complied with the rule. On the morning of his trial, the State interviewed a Mrs. Scott,
Williams chief alibi witness. At trial, Mrs. Scotty gave testimony which contradicted her pretrial
statements. The State also furnished a rebuttal witness. Williams was convicted.

RULE OF LAW- the constitutional privilege against self-incrimination is not violated by a requirement
that the D give notice of an alibi defense and disclose his alibi witnesses.

The rule is fair to both the D and the state in permitting liberal discovery. The state has a legitimate
interest in protecting itself against 11 th hour defenses, although based on an adversary system, a trial is
not yet a poker game in which players may conceal their cards at will. No pretrial statements of Mrs.
Scotty were introduced at trial, her pretrial testimony was only used to find rebuttal testimony. A D is
always in a dilemma whether to remain silent or present a defense which may prove disastrous. Nothing
in the rule obligates the D to rely on an alibi or prevent him from abandoning it as a defense. The rule
only requires that a D accelerate the timing of his disclosure of information he would have revealed at
trial anyway. A D is not entitled to await the end of the prosecution’s case against him before
announcing the nature of his defense anymore than he can await the jury’s verdict on the state’s case
before deciding to take the stand himself. Absent the rule, the prosecution would be entitled to a
continuance at trial on the grounds of surprise, the rule thus serves to prevent a disrupted trial.

Regulation of Discovery

The criminal D’s right to pretrial discovery may come into conflict with the privacy rights of victims or
other 3rd parties. All jurisdictions empower the court to issue protective orders or limit the scope and
terms of discovery, subject of course to constitutional limitations.

Possible sanctions authorized in various states for dealing with a discovery violation:
-instruct the jury to assume the accuracy of certain facts that might have been established through the
nondisclosed material
-in case of violation by the government- dismiss the prosecution
-hold the offending party in contempt of court
-declare a mistrial
-order immediate disclosure and offer a continuance for the party to examine the material.

Taylor v. Illinois

Illinois (P) law requires the defense to provide a pretrial list of all witnesses it intends to call. During his
trial, Taylor’s defense counsel wished to call a witness who was not on the pretrial list. Taylor claimed
that the witness could not be located before trial, but the witness admitted at a hearing that defense
counsel had visited him the week before trial. The trial judge, concluding that the witness was no
credible and that the evidence might be manufactured, did not allow the witness to testify. Taylor
appealed, arguing that his 6th Amendment Compulsory Process Clause bars a judge from precluding the
testimony of a surprise witness.

RULE OF LAW- when the defense intentionally omits a witness from a required pretrial witness list to
gain a tactical advantage, the trial judge may refuse to let the witness testify.

The Compulsory Process Clause mandates not only that a D may compel the presence of a witness, but
also that the trier of fact must hear the witness. However, where the D fails to comply with discovery
rules, the D’s rights must be weighed against the public interest in excluding unreliable or perjured
testimony, in avoiding prejudice to the prosecution, and in enforcing rules for the fair and efficient
functioning of the adversary process. While there are less drastic sanctions available (granting a
continuance or mistrial or disciplining the D or defense counsel, for example), in the event a discovery
violation is willful only the severest sanction-witness preclusion- may be strong enough to combat the
D’s powerful incentive to present perjured testimony. Finally, unless defense counsel is constitutionally
ineffective, the adversary process requires a client to be held responsible for the actions of his attorney.
Accordingly, there was no error committed by not allowing Taylor’s omitted witness to testify at trial
Affirmed.

Note- the Federal Rules do not require either party to provide a pretrial list of all witnesses, but federal
judges have discretion to order the government to provide a witness list.

Ethical Considerations

Appellate courts often suggest that when the exculpatory nature of the material is in doubt, the
prosecutor should submit the material to the trial court for an in camera review and ruling on its
possible exculpatory value.

Jury Trials

A. Right to Jury Trial

The 6th Amendment provides in part that in all criminal prosecutions an accused shall enjoy the right to a
public trial, by an impartial jury of the State, and district wherein the crime shall have been committed.
This 6th Amendment right is applicable to the states through the 14 th Amendment Due Process Clause
(recent SC decision).

Blanton v. City of North Las Vegas

Blanton (D) and an unrelated D, Fraley, were charged with driving under the influence in Nevada. The
North Las Vegas Municipal Court denied Blanton’s pretrial demand for a jury trial. On Appeal, the 8 th
judicial district court denied Blanton’s request, but granted the same request to Fraley. The Supreme
Court of Nevada affirmed.

RULE OF LAW- There is no constitutional right to a trial by jury for persons charged with a 1 st offense of
driving under the influence in the State of Nevada because it is an offense punishable by a maximum of
6 months in prison.

This does not automatically conclude that anything carrying less than a 6 month imprisonment term is a
petty offense, however, it raises the presumption that society considers it so. Because a 1 st offense for
DUI is punishable by a max of 6 months in prison, Blanton is not entitled to a jury trial. Affirmed.

Note- although the Court recognized that monetary fines and more severe future sentences can result
from a conviction authorizing no more than 6 months of incarceration, when deciding when to grant the
right to a jury or the right to appointed counsel, the Court consistently refused to include such concerns
in the constitutional calculus.

Notes-

Apprendi v. New Jersey- struck down a sentencing law enabling a judge to lengthen a jury-imposed
sentence by 2 years if a crime was determined to be a hate crime. The Court held that, other than the
fact of a prior conviction, any fact increasing the penalty beyond the prescribed statutory maximum,
whether the statute calls it an element or a sentencing factor, must be submitted to a jury, and proved
beyond a reasonable doubt.

Jury Size and Unanimity

Williams v. Florida

William’s motion to impanel a 12-person jury, rather than 6 provided by FL law in noncapital cases, was
denied. Thereafter he was convicted of robbery and sentenced to life imprisonment.

Duncan v. Louisiana- held that the 14 th amendment guarantees a right to trial by jury in all criminal cases
that- were they to be tried in a federal court- would come within the 6 th Amendment’s guarantee.
Petitioner’s robbery here clearly falls within the scope of that holding.

Question is whether the constitutional guarantee of a trial by ‘jury’ necessarily requires trial by exactly
12 persons, rather than some lesser number- in this case, 6. We hold that a 12 person panel is not a
necessary ingredient of ‘trial by jury’ and respondent’s refusal to impanel more than 6 members
provided for by FL law did not violate petitioners 6 th Amendment rights as applied to the States through
the 14th Amendment.

Apodaca v. Oregon

3 men were convicted in separate trials where juries returned verdicts that were not unanimous.
Apodaca (D) appealed, arguing that conviction by less than a unanimous jury was a violation of his
constitutional rights under the 6th Amendment because it allowed a conviction despite the existence of
reasonable doubt.

RULE OF LAW- A conviction may be constitutional even though the jury was not unanimous in its verdict.

The 6th Amendment has never required proof beyond a reasonable doubt. The reasonable doubt
standard developed separately from the right to a jury trial. The reasonable-doubt requirement
crystallized after the Constitution was adopted and drew no support from the 6 th Amendment. Apodaca
bases a second argument on the 6th amendment guarantee that a jury represent a cross section of the
community. Apodaca argues that if a less-than-unanimous jury is allowed to convict, the minority
element of the community can consistently be outvoted. There are 2 flaws to Apodaca’s reasoning- (1)
the constitution does not require that every minority element of the community be represented on
every jury, so long as such an element is not systematically excluded from a jury, (2) the fact that a
minority opinion is outvoted is irrelevant, as long as it is heard during deliberations.

Selecting Prospective Jurors

The Fair Cross Section Requirement

The 6th Amendment grants to criminal D’s the right to a ‘jury of the state and district wherein the crime
shall have been committed.’
Duren v. Missouri

Duren (D) was indicted in 1975 for robbery and murder. At a pretrial motion he argued that the jury
impaneled in his case was not a fair cross section of his community because Missouri law granted an
automatic exemption to any woman who requested one. At his motion hearing, Duren established that
54% of the inhabitants of his county were women, but only 14.5% appeared for jury duty during the
time of his trial. Duren’s jury, which consisted entirely of men, was empanelled from a 53-member
panel, of whom only 5 were women. None of the statistical evidence was disputed however, both pre-
trial motion to quash the jury selection and the post-conviction motion were denied.

RULE OF LAW- Where women are systematically underrepresented in the final pool of jurors due to laws
relating to jury selection, a D’s constitutional right to a jury by a fair cross section is violated.

The Court looked at the fair cross section inquiry established in Taylor v. Louisiana- this standard
requires the D to show: (1) that the alleged excluded group is a ‘distinctive’ group in the community, (2)
that the representation of that group in the venires from which a jury is selected is unfair and
unreasonable in relation to the number of that group in the community, (3) that the
underrepresentation is due to systematic exclusion of that group in the jury selection process. If all 3
requirements are met, the D has established a prima facie showing of a violation. The Court found that
Duren met all 3 requirements because women made up 54% of the population of Jackson County and
the large discrepancy between men and women, which occurred every week for a period of a year, was
inherent in the jury selection process. Significantly the final percentage of females available at the venire
stage of jury selection was only 14.5% where the percentage of women summoned was 26.7%. The
state’s argument that women should be exempt more easily then men due to their home and family
roles is an insufficient justification for the disproportionate exclusion of women from jury venires
because this policy has resulted in a prima facie violation of the fair cross section requirement of the
Constitution.

Jury Selection Process

The purpose of voir dire examination is to determine any possible basis for challenging jurors for cause
and to develop background information to be considered in the intelligence exercise of peremptory
challenges.

Exercising Peremptory Challenges

By rule in most jurisdictions, both parties can challenge a number of jurors without giving any reason
whatsoever. Peremptory challenges, though, are not of constitutional dimension.

Miller-El v. Dretke

Miller-El alleged the prosecution in his capital murder trial violated the 14th Amendment's equal
protection clause by excluding 10 of 11 blacks from the jury. The jury convicted Miller-El and he was
sentenced to death. State courts rejected Miller-El's appeals and ruled Miller-El failed to meet the
requirements for proving jury-selection discrimination outlined by the U.S. Supreme Court in Batson v.
Kentucky(1986). Miller-El then appealed to a federal district court. The district court rejected Miller-El's
appeal and ruled the court must defer to the state courts' acceptance of prosecutors' race-neutral
justifications for striking potential jurors. The Fifth Circuit Court of Appeals affirmed and ruled a federal
court could only grant an appeal if the applicant made a substantial showing of the denial of a
constitutional right.

Miller-El appealed to the U.S. Supreme Court and in Miller-El v. Cockrell(2003) the Court ruled the Fifth
Circuit should have accepted Miller-El's appeal to review the district court's ruling. The Supreme Court
said an appeal should have been granted if the petitioner could demonstrate reasonable jurists could
disagree with the district court's decision. The Court said the district court did not give full consideration
to the substantial evidence Miller-El presented. The Fifth Circuit reconsidered Miller-El's appeal and
ruled Miller-El failed to show clear and convincing evidence that the state court was wrong to find no
purposeful discrimination.

Question: 
1. Did the Fifth Circuit Court of Appeals, by rejecting Miller-El's claim the prosecution purposefully
excluded blacks from his jury, violate the U.S. Supreme Court's decision in Miller-El v. Cockrell (2003)? 2.
Did the Texas jury selection manual encourage unconstitutional disparate questioning based on race?
Conclusion: 
Yes and yes. In a 6-3 opinion delivered by Justice David Souter, the Court held that Miller-El deserved to
win his appeal because the jury selection in his case violated the Fourteenth Amendment's equal
protection clause. The Court began by noting that the prosecutors used peremptory strikes to exclude
91 percent of the eligible black prospective jurors, "a disparity unlikely to have been produced by
happenstance." After comparing two eliminated black prospective jurors with similar white jurors who
were not eliminated, the Court concluded that the "selection process was replete with evidence that
prosecutors were selecting and rejecting potential jurors because of race." The Court further concluded
that Texas' jury selection manual, both in this case and generally, tended to allow prosecutors to read
disparate questions to prospective jurors depending on whether they were black or white. The state
court’s conclusion was unreasonable as well as erroneous. Judgment of the Court of Appeals was
reversed and the case remanded.

Batson v. Kentucky- A D may establish a prima facie case of purposeful discrimination in selection of the
petit jury solely on evidence concerning the prosecutor’s exercise of peremptory challenges at the D’s
trial. To establish such a case, the D first show (1) that he is a member of a cognizable racial group and
that the prosecutor has exercised peremptory challenges to remove from the venire members of the D’s
race, (2) the D is entitled to rely on the fact, as to which there can be no dispute, that peremptory
challenges constitute a jury selection practice that ‘permits those to discriminate who are of a mind to
discriminate.’ (3) the D must show that these facts and any other relevant circumstances raise an
inference that the prosecutor used that practice to exclude the veniremen from the petit jury on
account of their race.
-The trial should consider all relevant circumstances.
-Upon the D’s showing a prima facie showing, the burden shifts back to the state to come forward with a
neutral explanation.

Batson requires D’s to establish a prima facie case of discrimination, (2) asking prosecutors then to
offer a race-neutral explanation for their use of the peremptory, and then (3) requiring D’s to prove
that the neutral reason offered is pretexual.

Several cases significantly broadened Batson’s scope:

-Powers v. Ohio- Using a third-party standing principle, a white D had standing to assert an equal
protection claim on behalf of the excluded African American jurors.
-Georgia v. McCollum- a criminal D also cannot engage in purposeful discrimination in the exercise of
peremptory challenges.
-Hernandez v. NY- Batson applies to both race and gender.

Guilty Pleas

A. Plea Alternatives & Frequency of Guilty Pleas

After an indictment or criminal information has been filed, the D is typically arraigned on that charging
document and is asked to enter a plea in open court. D may plead guilty, not guilty, or in many
jurisdictions-if permitted by the court in the interests of justice- enter a plea of nolo contender
(indicating that he is simply not contesting the charges).

Nolo pleadings are identical to a guilty plea except that, unlike a guilty plea (that has not been
withdrawn), a nolo plea cannot be used as an admission of guilt against a D in a subsequent civil
proceeding.

In many states a D may enter a conditional plea, reserving in writing the right to appeal specified pretrial
motions without having to proceed to a complete trial in order to preserve the issues for appeal.
Conditional pleas require that the court and the prosecutor approve the conditional guilty plea and any
D who prevails on appeal may later withdraw the conditional plea.

Sometimes guilty pleas are traded explicitly for a less severe charge or sentence but they also result
from a D’s straightforward admission of guilt.

Plea Negotiation

“Plea Bargaining”

A D has no constitutional right to plea bargain with the prosecutor. Prosecutors nevertheless cannot
case the decision to plea bargain upon unjustifiable standards such as race, religion, or other arbitrary
classifications. Bordenkircher v. Hayes

Fed.r.Crim.P 11(c)(1) prohibits the judge from participating in plea negotiations.

One of the few grounds upon which a guilty plea may be set aside is if a court determines that it is
involuntary. In Brady v. US, the Court held that D must prove that the fear of the possible consequences
of not pleading guilty destroyed the ability to balance the risks and benefits of going to trial. The Court
found Brady’s plea was voluntary even though it was motivated by his desire to avoid the death penalty.

Bordenkircher v. Hayes

Hayes (D), who was charged with uttering a forged instrument (for 88.30), faced a sentence of 2-10
years if convicted. The prosecutor offered a 5 year sentence in return for a guilty plea and told Hayes
that refusal to take the ‘bargain’ would result in his seeking an additional indictment under the Kentucky
Habitual Criminal Act, which makes a life sentence mandatory if there are 2 prior felony convictions.
When Hayes declined the plea bargain, he was subjected to the additional indictment and sentence to
life imprisonment under the Habitual Criminal Act, after having been found guilty of the uttering charge.
The 2 previous felonies in which Hayes was involved had never resulted in his imprisonment, one was a
rape charge reduced to a plea of detaining a female and the other was a robbery conviction resulting in
5 years on probation. Finding the prosecutor to have acted vindictively in securing the 2 nd indictment,
the court of appeals reversed Haye’s conviction for violation of due process.

RULE OF LAW- A prosecutor can attempt to gain a D’s assent to a plea bargain by informing the D that
more sever charges will be brought if no bargain is struck.

As long as the D is advised that the bringing of additional charges will accompany his refusal to bargain,
the situation becomes similar to that where the prosecutor offers to drop a charge as part of the plea
bargain. If plea bargaining is a recognized process, neither can be forbidden simply because the charging
decision is influenced by what a prosecutor hopes to gain in plea bargaining negotiations. In accepting a
plea bargain, it is implicit that there is acceptance of the notion that the prosecutor’s interest is to
persuade the D not to exercise his right to plead not guilty. As long as the prosecutor has probable cause
to believe the accused committed the offense and he properly exercises his discretion, decisions not
being influenced by standards of race, religion, etc. there is no due process violation. Reversed.

Legality and Enforcement

Santobello v. NY

Certiorari was granted to determine whether the State’s failure to keep a commitment concerning the
sentence recommendation on a guilty plea required a new trial.

Petitioner, Santobello, withdrew a not guilty plea to two felony counts and pleaded guilty to a lesser-
included offense, after negotiations with a prosecutor. When he appeared for sentencing, several
months later, a new prosecutor recommended the maximum sentence and he was sentenced as such.
Petitioner attempted to withdraw his guilty plea; however, his conviction was upheld. He appealed.

Held. Remanded for re-decision. Justice Burger, for the court, wrote that plea bargaining is an important
step in the criminal process and ought not be dismissed. Because he felt it was the realm of the trial
court to determine sentencing, the case was remanded to the trial judge to make a determination of
either re-sentencing, as per the plea agreement or whether the defendant would be allowed to
withdraw his plea.

If the prosecutor violates his agreement, the court may order specific enforcement of the
agreement or allow the defendant to withdraw the plea.
Ricketts v. Adamson

Question is whether the Double Jeopardy Clause bars the prosecution of respondent for 1 st degree
murder following his breach of a plea agreement under which he had pleaded guilty to a lesser offense,
had been sentenced, and had begun serving a term of imprisonment. The Court of Appeals eld that the
prosecution of respondent violated double jeopardy principles and direct the issuance of a writ of
habeas corpus. We reverse.

Respondent was arrested and charged for the death of a reporter who was fatally injured when a bomb
exploded underneath his car. Respondent agreed to plead guilty to a charge of 2 nd degree murder and to
testify against 2 other individuals who were allegedly involved in Bolle’s murder. Specifically, the
respondent agreed to ‘testify fully and completely in any Court, State or Federal, when requested by
proper authorities against any and all parties involved in the murder of Bolles. And if D refuses to testify
or should he at any time testify untruthfully, then this entire agreement is null and void and the original
charge will be automatically reinstated.

The terms of the agreement could not be clearer: in the event of respondent’s breach occasioned by a
refusal to testify, the parties would be returned to the status quo ante, in which case respondent would
have no double jeopardy defense to waive.

Plea Negotiation Roles

1. The Prosecutor’s Role

Advocate, administrator, judge, or legislature

2. Defense Counsel’s Role

3. The Judge’s Role

Boykin v. Alabama

Defendant Boykin was African-American charged with common-law robbery, which carried a death
sentence in Alabama. He was appointed counsel and pleaded guilty. Under Alabama law, the jury
still provided a sentence of death.

It was error, plain on the face of the record, for the trial judge to accept petitioner’s guilty plea
without an affirmative showing that it was intelligent and voluntary. A plea of guilty is more than an
admission of conduct, it is a conviction. Ignorance, incomprehension, coercion, terror, inducements,
subtle or blatant threats might be a perfect cover-up of unconstitutionality.
Withdrawing a Guilty Plea

“Broken” plea agreement- situations where the D believes he or she has not received the ‘deal’ he
or she bargained for, courts generally permit such withdrawal if they agree that the deal was in fact
broken.

However, where the bargained for deal is simply to be a ‘recommendation’ or where the prosecutor
has agreed simply not to oppose a defense recommendation and where the prosecutor has not
reneged on this particular deal, a D cannot count on being able to withdraw a guilty plea if he is
displeased with the ultimate adjudicative or sentencing outcome.

Once properly tendered, a D does not generally have the right to withdraw a guilty plea.
Nonetheless, prior to the imposition of sentence, most courts can and do permit such withdrawal if
the D presents ‘any fair and just’ reason to do so. After the imposition of sentence, withdrawal is
rarely permitted absent a finding of manifest injustice or a miscarriage of justice.

If the reason a D pleaded guilty was that he relied on the incompetent legal or tactical advice of
defense counsel, where he can demonstrate that ‘there is a reasonable probability that, but for
counsel’s errors, D would not have pleaded guilty and would have insisted on going to trial’, the
guilty plea may be withdrawn as a result of ineffective assistance of counsel.

Sentencing

While it is seldom successful, counsel may attack a sentence which constitutes cruel and unusual
punishment, violates double jeopardy prohibitions, or violates concepts of equal protection.

Noncapital Sentencing Alternatives

Alexander v. US- trial court ordered D to forfeit his businesses and almost 9 million acquired through
racketeering activity- this was a permissible criminal punishment, not a prior restraint on speech
because it merely prevented him from financing his activities with assets derived from his prior
racketeering offenses.

Generally, under the Due Process Clause, the Gov’t must provide notice and a meaningful
opportunity to be heard before seizing real property subject to civil forfeiture.

All Ds are required to refrain from committing another offense, as well as other conditions such as
restitution which the court deems to be reasonable necessary to enable the D to lead a law-abiding
life.

Death as a Punishment

The government must establish at least one aggravating circumstances beyond a reasonable doubt
in order to impose the death penalty.

The prosecution must give defense counsel adequate notice that it will seek the death penalty.
 Proportionality of Punishment

Ewing v. California

Issue- whether the 8th Amendment prohibits the State of California from sentencing a repeat felon
to a prison term of 25 years to life under the State’s “Three Strikes and you’re Out’ Law.

If the D has one prior ‘serious’ or ‘violent’ felony conviction, he must be sentenced to ‘twice the term
otherwise provided as punishment for the current felony. If the D has 2 or more ‘serious’ or ‘violent’
felony convictions, he must receive ‘an indeterminate term of life imprisonment.

Solem Court explained 3 factors that may be relevant to a determination of whether a sentence is to
disproportionate that it violated the 8 th Amendment- (1) the gravity of the offense and the harshness of
the 8th Amendment, (2) the sentences imposed on other criminals in the same jurisdiction, and (3) the
sentences imposed for commission of the same crime in other jurisdictions.

When the California legislature enacted the 3 strikes law, it made a judgment that protecting the public
safety requires incapacitating criminals who have already been convicted of at least one serious or
violent crime. We have long viewed both incapacitation and deterrence as rationales for recidivism
statutes.

Ewings claim- sentence to 35 to life is unconstitutionally disproportionate to his offense of shoplifting 3

golf clubs.

Holding- Ewings sentence imposed for the offense of felony grand theft under the 3 strikes law, is not
grossly disproportionate and therefore does not violate the 8 th Amendment prohibition on cruel and
unusual punishments.

Sentencing Procedures

Williams v. New York

A jury in New York State court found appellant guilty of murder in the first degree, and recommended
life imprisonment. The trial judge imposed a sentence of death after considering additional information
of the defendant’s criminal record. Williams sought an appeal on the basis that he was not given the
opportunity for cross-examination or rebuttal.

The case presents a serious and difficult question- the rules of evidence applicable to the manner in
which a judge may obtain information to guide him in the imposition of a sentence upon an already
convicted defendant.

Held. Due process should not be considered a wall that is impenetrable by the evidentiary process that a
judge must go through in determining sentencing. Affirmed.Dissent. Justice Murphy, for the dissent,
argues that due process accords a defendant a fair trial at every stage and, by including evidence of a
criminal record at sentencing, without affording the defendant a means of rebuttal, the defendant is
necessarily being deprived of that right.

Discussion. Due process is not a complete bar to the inclusion of evidence when it is to be considered by
a Judge at the sentencing stage.

Apprendi v. New Jersey

Held that judges may not alone determine a finding of fact that increases the level of punishment for the
D beyond the prescribed statutory maximum. Moreover, a finding of fact cannot be based on a lower
degree of certainty; any fact, other then the fact of prior conviction, must be submitted to a jury and
proved beyond a reasonable doubt.

The Court held unconstitutional a NJ statute that allowed judges to impose a sentence for 2 nd degree
offenses that was similar to that for 1st degree crimes on a finding of ‘mere preponderance of the
evidence, that the D’s purpose was to intimidate his victim based on the victim’s particular
characteristic. This meant that a judge could increase the sentence beyond the maximum imposed by
law for that particular offense if he or she found that the criminal act constituted a ‘hate crime.’ The
Court said the 14th Amendment right to due process and the 6 th Amendment right to trial by jury, taken
together, entitle a criminal D to a jury determination that he is guilty of every element of the crime with
which he is charged, beyond a reasonable doubt.’

Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt.

Apprendi violations are subject to harmless error analysis. As with the failure to submit elements of a
crime to the jury, the failure to submit a sentencing factor to the jury is not a ‘structural’ error.

United States v. Booker

Question presented- whether an application of the Federal Sentencing Guidelines violated the 6 th
Amendment. In each case, the courts below held that binding rules set forth in the Guidelines limited
the severity of the sentence that the judge could lawfully impose on the D based on the facts found by
the jury at trial.

Respondent Booker was charged with possession with intent to distribute at least 50 grams of cocaine
base. The jury found him guilty under 21 USC 841 and the statute prescribes a minimum sentence of 10
years in prison and a max term of sentence for life. Based upon Booker’s criminal history and the
quantity of drugs found by the jury, the Sentencing Guidelines required the S.Ct. to select a ‘base’
sentence of not les than 210 nor more than 262 months in prison. The judge, however, held a post-trial
sentencing proceeding and concluded by a preponderance of the evidence that Booker had possessed
an additional 566 grams of crack and that he was guilty of obstructing justice. Thus, instead of the
sentence of 21 years and 10 months that the judge could have imposed on the basis of the facts proved
to the jury beyond a reasonable doubt, Booker received a 30-year sentence.
The court of appeals held that this application of the Sentencing Guidelines conflicted with our holding
in Apprendi v. NJ that other then the fact of a prior convction, any fact that increases the penalty for a
crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a
reasonable doubt. The majority relied on Blakely v. Washington that the ‘statutory maximum’ for
Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts
reflected in the jury verdict or admitted by the D. The court held that the sentence violated the 6 th
Amendment and remanded to the D. Ct.

Blakely v. Washington- the determination that the D acted with deliberate cruelty, like the
determination in Apprendi that the D acted with racial malice, increased the sentence that the D could
have otherwise received. Since this fact was found by a judge using a preponderance of the evidence
standard, the sentence violated Blaketly’s 6th amendment rights.

“we have never doubted the authority of a judge to exercise broad discretion in imposing a sentence
within a statutory range.

‘We reaffirm our holding in Apprendi- any fact (other than a prior conviction) which is necessary to
support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a
jury verdict must be admitted by the D or proved to a jury beyond a reasonable doubt.

In a fragmented decision, with two separate majority opinions, the Court held that Apprendi and Blakely
apply to the Sentencing Guidelines and that the Guidelines are no longer mandatory in federal court.
The Court, however, also ruled that the guidelines are advisory.

It appears, though, that the law is now that judges in federal court can impose any sentence within the
maximum identified in the relevant federal statute, so long as it is based on the jury's verdict or what
the defendant admitted. The Sentencing Guidelines still must be considered, but they are definitely not
mandatory.

Double Jeopardy

A defendant has both federal and state constitutional protections against being placed in jeopardy twice
for the same offense. The pertinent part of the 5 th Amendment states- nor shall any person be subject
for the same offense to be twice put in jeopardy of life or limb- this is applicable to the states through
the 14th Amendment.

A successful claim involving double jeopardy will bar a trial on the indictment or information. The
objection may be raised by a motion to dismiss at any time before trial. Although a failure to raise the
objection before the second adjudication may operate as a waiver, it may be raised for the first time in a
reviewing court of the double jeopardy issue can be decided as a matter of law on the facts established
by the record.
Double jeopardy bars a second prosecution only if jeopardy attached in the original proceeding. In a
jury trial, jeopardy attaches when the jury is sworn. If a case is tried before a judge, after waiver of a
jury, jeopardy attaches when the trial court accepts a guilty plea. Conversely, withdrawal of a guilty
plea is a waiver of the double jeopardy protection against trail on the charge in the indictment or
information. If a case is dismissed or terminated prior to the attachment of jeopardy, jeopardy has not
attached and the D may have to respond to the same criminal charges in further proceedings.

One of the requirements for the attachment of jeopardy is that the court hearing the case have proper
jurisdiction. When the court exceeds its jurisdiction, a conviction is void and there is no bar to a new
trial.
-The doctrine of dual sovereignty does not prohibit multiple prosecutions for the same offense by courts
of different sovereignties. (successive prosecutions by different states permissible, successive state and
federal trials for same offense permissible). However, the doctrine of dual sovereignty does not prohibit
multiple prosecutions for the same offense by courts of different sovereignties (state statute and local
ordinance).

Mistrials and the Possibility of a Retrial

After jeopardy attaches a case cannot be terminated without an adjudication because the D has a right
to have the case completed by a particular factfinder. A mistrial declaration is the most common
exception to this double jeopardy concept. A mistrial is granted whenever an error has occurred in the
trial that cannot be cured by any remedial action of the parties or the court.

If the termination of the 1st trial was manifestly necessary, a retrial is permitted. If the termination was
not manifestly necessary, double jeopardy prohibits a retrial. The decision to grant a mistrial is within
the trial court’s discretion.

Illinois v. Somerville

In March of 1964, respondent, Somerville, was indicted for theft. After the jury was empanelled, but
before the trial had begun, the prosecutor realized that his indictment was deficient because it did not
include an allegation that of the respondent’s intent. At that point, the prosecution moved for a mistrial.
In November of the same year, the grand jury indicted respondent of the same crime, but with the
appropriate allegations in the indictment. Defendant was later convicted and appealed on the grounds
that double jeopardy had attached at the moment when jury was empanelled because it was a step in
his prosecution.

‘The law has invested Courts of justice with the authority to discharge a jury from giving any verdict,
whenever, in their opinion, taking all of the circumstances into consideration, there is a manifest
necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a
sound discretion on the subject, and it would be impossible to define all the circumstances, which would
render it proper to interfere.‘
Perez- manifest necessity justified the discharge of juries unable to reach verdicts and therefore the
double jeopardy clause did not bar retrial
Simmons- a trial court dismissed the jury over D’s objection because one of the jurors had been
acquainted with the D and therefore was probably prejudiced against the gov’t
Thompson- mistrial was declared after the trial judge learned that one of the jurors was disqualified, he
having been a member of the grand jury that indicted the D.

The delay here was minimal and the mistrial was, under Illinois law, the only way in which a defect in the
indictment could be corrected.

Where the declaration of a mistrial implements a reasonable state policy and aborts a proceeding that
at best would have produced a verdict that could have been upset at will by one of the parties, the D’s
interest in proceeding to verdict is outweighed by the competing and equally legitimate demand for
public justice.

Held. Because the defective indictment deprives the trial court of jurisdiction, a mistrial was proper and
Double Jeopardy had not attached because the defendant had not been tried of the crime of which he
was accused.

-Appellate courts should defer to a trial judge’s decision to grant a mistrial, unless there is an abuse of
that discretion.

Generally, a retrial is permissible if the D actively sought or consented to a premature termination of the
earlier proceedings. However, a D who seeks and obtains a mistrial may still use the double jeopardy
protection to avoid a retrial.

Oregon v. Kennedy

Respondent, Kennedy, was charged with theft of an oriental rug. At his trial, the prosecution asked an
expert witness if he had done business with the respondent, and when he replied that he had not, the
prosecutor asked if that was the case because the respondent was a “crook.” At that point, a mistrial
was granted. Later the prosecution sought to have another trial and respondent moved to dismiss,
based on Double Jeopardy. While the Oregon court of appeals sustained the dismissal, the state
appealed.

Where the trial is terminated over the D’s objection, the classical test for lifting the double jeopardy bar
to a second trial is the ‘manifest necessity’ standard. Here, the D himself has elected to terminate the
proceedings against him, and the ‘manifest necessity’ standard has no place in the application of Double
Jeopardy.

Prosecutorial conduct that might be viewed as harassment or overreaching, even if sufficient to justify a
mistrial on D’s motion, therefore, does not bar retrial absent intent on the part of the prosecutor to
subvert the protections afforded by the Double Jeopardy Clause. Where the prosecutorial error even of
a degree sufficient to warrant a mistrial has occurred, the important consideration, for purposes of the
Double Jeopardy Clause, is that the D retain primary control over the course to be followed in the event
of such error. Only there the government conduct in question is intended to ‘goad’ the D into moving for
a mistrial may a D raise the bar of double jeopardy to a second trial after having succeeded in aborting
the first on his own motion.

The prosecutorial conduct culminating in the termination of the 1 st trial in this case was not so intended
by the prosecutor, that is the end of the matter for purposes of the Double Jeopardy Clause of the 5 th
Amendment.

Held. Double Jeopardy does not attach to a retrial unless a defendant can show that a prosecutor
purposefully provoked a mistrial.

Termination of the Case by Dismiss or Acquittal

Once jeopardy has attached, the way in which a trial ends is relevant to double jeopardy principles.
Whether the cessation of a trial is a dismissal or acquittal is important to resolving whether the
government can appeal the adverse termination of the case and whether the D can be reprosecuted. All
jurisdictions provide statutory authority for the government to appeal from an adverse termination. In
the absence of a double jeopardy prohibition, the government can appeal under statutory authority and
if successful, reprosecute the D.

United States v. Scott

Scott, a police officer, was charged with distribution of narcotics. Over the course of his trial, he moved
several times to dismiss two counts of his indictment on the ground that his defense had been
prejudiced by preindictment delay. At the close of evidence, the court granted the Motion, the
government appealed, and the Sixth Circuit determined that further prosecution was barred by the
Double Jeopardy clause of the Fifth Amendment. The Supreme Court granted certiorari.

Held. Reversed. Double Jeopardy does not bar subsequent prosecution of a matter when it is dismissed
on a ground unrelated to factual guilt or innocence. “Where a defendant, himself, seeks to have the trial
terminated without any submission to either judge or jury as to his guilt or innocence, an appeal by the
government for his successful effort to do so is not barred by [the Double Jeopardy Clause].”

“We now conclude that where the D himself seeks to have the trial terminated without any submission
to either judge or jury as to his guilt or innocence, an appeal by the Government from his successful
effort to do so is not barred by 18 USC 3731.

Termination of the Case by Conviction

The general rule is that when a D appeals a conviction successfully, double jeopardy does not preclude a
reprosecution. When a D chooses to appeal from a conviction, he seeks to nullify the conviction. (i.e. no
trial ever occurred, slate is wiped clean and the D never ran the gauntlet and can be tried ‘again’).

Lockhart v. Nelson
Respondent pled guilty to burglary and theft. He was sentenced under the State’s habitual criminal
statute which provided for an enhanced sentence. At the sentencing hearing, the state sought to use the
evidence of prior convictions, but respondent indicated that one of his convictions had been pardoned.
The prosecutor suggested he was confused and continued to move for the enhanced sentence, which
was imposed. Respondent later sought a writ of habeas corpus to the District Court arguing that the
sentence was invalid because it was imposed based on a pardoned offense and that imposing such
sentence would be in violation of Double Jeopardy- the State announced its intention to resentence
respondent as a habitual offender using another prior conviction not offered or admitted at the initial
sentencing hearing, and respondent interposed a claim of double jeopardy. . Defendant requested a
new sentencing hearing.’

Holding- where the evidence offered by the State and admitted by the trial court- whether erroneously
or not- would have been sufficient to sustain a guilty verdict, the Double Jeopardy Clause does not
preclude retrial.

Double Jeopardy Clause’s general prohibition against successive prosecutions does not prevent the
government from retrying a D who succeeds in getting his first conviction set aside through direct appeal
or collateral attack.

Because the Double Jeopardy Clause affords the D who obtains a judgment of acquittal at the trial level
absolute immunity from further prosecution for the same offense, it ought to do the same for the D who
obtains an appellate determination that the trial court should have entered a judgment of acquittal.

Burks exception- basis for the exception to the general rule is that a reversal for insufficiency of the
evidence should be treated no differently than a trial court’s granting a judgment of acquittal at the
close of the evidence. (evidentiary insufficiency is different then trial error)

Controlling Prosecutorial and Judicial Vindictiveness

North Carolina v. Pearce

Pearce was convicted in a NC court upon a charge of assault with intent to commit rape. The trial judge
sentenced him to prison for 12-15 years. He received a reversal based on an involuntary confession that
had unconstitutionally been admitted in evidence against him. He was retried, convicted, and sentenced
for a term that amounted to a longer sentence than originally imposed.

Neither double jeopardy nor the Equal Protection clause imposes an absolute bar to a more severe
sentence upon reconviction. A trial judge is not constitutionally precluded from imposing a new
sentence whether greater or less than the original sentence, in light of events subsequent to the first
trial.

Due process requires that vindictiveness against a D for having successfully attacked his 1 st conviction
must play no part in the sentence he receives after a new trial.
Whenever a judge imposes a more severe sentence upon a D after a new trial, the reasons for his doing
so much affirmatively appear and must be based upon objective information concerning identifiable
conduct on the part of the D occurring after the time of the original sentencing proceeding. The factual
data upon which the increased sentence is based must be made part of the record, so that
constitutional legitimacy of the increased sentence may be fully reviewed on appeal.

Here, the State has not offered any reason or justification for the sentence beyond the naked power to
impose it. Affirmed.

Appeals

It is ordinarily the D not the State who initiates the appellate process, seeking not to fend off the efforts
of the States prosecutor but rather to overturn a finding of guilt made by a judge or jury below.

APPELLATE REVIEW

Direct Appeal State Habeas Corpus Federal Habeas Corpus

US Supreme Court US Supreme Court US Supreme Court
State Supreme Court State Supreme Court Court of Appeals
State Intermediate Appellate State Intermediate Appellate Federal Dist. Court
Court Court
Conviction in State court State trial court

Motions to set aside the verdict and motions for a new trial are addressed to the trial court

Direct appeal lies to the state appellate courts, while habeas petitions can be filed in both state and
federal courts.

Harmless error doctrine- The D is entitled to a fair trial, not a perfect trial free from all minor or technical
defects. If the reviewing courts find error in the record, reversal of the conviction is not warranted if the
outcome of the trial would have remained the same in the absence of the error.

Contemporaneous Objection Rule- no ruling of the trial court will be considered as a basis for reversal
unless the objection was stated together with the ground therefor at the time of the ruling. Objections
must be raised at trial in order to afford opposing counsel an opportunity to respond to the objection
and to allow the trial court to rule in the 1st instance as to the propriety of the objection. Appellate
courts however, are authorized to grant relief from this rule and may conduct a full review of the
conviction when necessary to attain the ends of justice- “plain errors or defects affecting substantial
rights may be noticed although they were not brought to the attention of the court. A more stringent
standard for reversal is applied when the D fails to object at trial, and on appeal cites plain error by the
trial court.

Curative Admissibility- retroactively corrects a trial court’s initial error in admitting evidence- i.e. a D
unsuccessfully objects to evidence which he considers improper and then introduces evidence of the
same character- he thereby waives his objection and forfeits his right to contest the trial court’s ruling
on appeal.

Proffers of Proof- requires that when the trial court sustains an objection and excludes evidence,
counsel offering the evidence must ensure that the record reflects what the evidence would have been.
Failure to make a proffer of evidence deprives the appellate court of the information necessary to rule
upon the objection.

Review by the Trial Court

1. Trial De Novo

A D convicted in a lower court such as magistrate court or police court where there is no record of the
proceeding, is often granted an absolute right to a trial de novo in a superior court and is normally
automatic upon a D’s request. No error need to be alleged as to the 1 st trial, and a D who exercises his
right to a trial de novo is not entitled to judicial review of the sufficiency of the evidence presented in
the lower court.
-D’s plea nor the lower courts judgment is admissible but D’s prior testimony is. The punishment
imposed at the trial de novo may be harsher than that imposed by the lower court.

2. Motion to Set Aside the Verdict

Prior to appeal to an appellate court, the defense may ask the trial court to set aside the guilty verdict.
(NOV- notwithstanding the verdict). A motion to set aside the verdict can be made after the verdict is
returned, and the motion can be based on (1) the insufficiency or weight of the evidence, (2) error
committed during trial, or (3) newly discovered evidence.

D may also move to set aside the verdict because of newly discovered evidence- courts generally require
that defense counsel prove (1) the evidence was discovered after the trial concluded (2) the evidence
could not, by the exercise of diligence, have been discovered before the trial terminated, (3) the
evidence is material and likely to produce a different verdict at the new trial, and (4) the evidence is not
merely cumulative, corroborative, or collateral.

Direct Appeal in the State Courts

Counsel must be provided to indigent persons exercising their right to appeal in felony cases but no right
to counsel exists to D’s seeking discretionary review.

The appellate court basis its review of the case on the trial record which commonly includes- jury
instructions given or refused, exhibits offered in evidence, any orders entered by the court, any opinion
or memorandum decision rendered by the trial judge, any pretrial discovery material requested, and
portions of the trial transcript in which the judge ruled upon objections to the introduction of evidence.

Most of the issues that arise in the course of a trial are to be resolved according to the broad discretion
of the trial court. On appeal, such rulings will not be disturbed in the absence of an abuse of discretion.
The appellate court must accept the trial courts factual determinations, so long as there is evidence to
support those findings.

United States v. Williams

When a district court rules on a pretrial motion involving factual issues, Rule 12(e) commands the court
to ‘state its essential findings on the record.’

Before trial, Christopher Williams unsuccessfully moved to suppress evidence that ultimately resulted in
his conviction by a jury for possessing with intent to distribute, cocaine.

We will sustain factual findings unless they are ‘clearly erroneous’ and we will review de novo whether
the correct rule of law was applied to the facts found.

The problem here was that they do not know which facts the district court considered essential to its
ruling nor what principle of the 4th Amendment the court believed supported its ruling.

The purpose of an appeal is to review the judgment of the district court, a function that could not be
properly performed here when they were left to guest at what it was they were reviewing. Remanded.

Harmless Error and Plain Error

A trial error that is not of constitutional dimension is harmless when it plainly appears from the facts and
circumstances of the case that the error did not affect the verdict. Reversal is required for a
nonconstitutional error only if it ‘had substantial and injurious effect or influence in determining the
jury’s verdict.’

Structural errors are ‘so intrinsically harmful as to require automatic reversal (i.e. affect substantial
rights) without regard to their effect on the outcome. The Supreme Court has recognized a number of
structural errors that require automatic reversal:
(1) unlawful exclusion of member’s of the D’s race from a grand jury
(2) exclusion of a juror reluctant to impose the death penalty
(3) violation of the right to a public trial
(4) violation of the right of self-representation
(5) a trial presided over by a biased judge
(6) violation of the right to counsel
(7) a constitutionally inadequate jury instruction on reasonable doubt.

“Trial errors” occur during the presentation of the case to the jury and often involve questions of the
admissibility of evidence. I.e. Apprendi violations are subject to harmless error analysis..

Constitutional errors are treated differently depending on whether they are raised on direct appeal or
collateral review.
-On collateral review (habeas corpus petitions), trial errors require reversal of the conviction only if the
D proves ‘actual prejudice.’ i.e. the error had a ‘substantial and injurious effect or influence in
determining the jury’s verdict.
-On direct review, trial errors require reversal of the conviction unless the reviewing court finds such
errors to be harmless ‘beyond a reasonable doubt.’

Chapman v. California

The petitioners were tried and convicted for robbery and the kidnapping and murder of a bartender. At
trial, the prosecution referenced the petitioners’ refusal to testify multiple times. The trial judge also
instructed the jury, as state law allowed, that they may draw adverse inferences from the lack of
testimony. That state law was overturned after the trial, but the petitioners’ convictions were affirmed
by the California Supreme Court because the references were deemed harmless error.

We conclude that there may be some constitutional errors which in the setting of a particular case are
so unimportant and insignificant that they may, consistent with the federal constitution, be deemed
harmless, not requiring automatic reversal of the conviction.

Approach in deciding what was harmless error: The question is whether there is a reasonable possibility
that the evidence complained of might have contributed to the conviction.

An error in admitting plainly relevant evidence which possible influenced the jury adversely to a litigant
cannot be conceived of as harmless.

Holding- before a federal constitutional error can be held harmless, the court must be able to declare a
belief that it was harmless beyond a reasonable doubt. While appellate courts do not ordinarily have the
original task of applying such a test, it is a familiar standard to all courts, and we believe its adoption will
provide for a more workable standard. The error in these cases were harmful to petitioner.
-the state prosecutor’s argument and the trial judge’s instruction to the jury continuously and
repeatedly impressed the jury that from the failure of petitioners to testify, to all intents and purposes,
the inferences from the facts in evidence had to be drawn in favor of the State- in short, that by their
silence petitioners had served as irrefutable witnesses against themselves. Petitioners are entitled to a
trial free from the pressure of unconstitutional inferences. Reversed and remanded.

--

When a D fails to object to a trial error at trial but later calls the error to the attention of the appellate
court, the standard of review is for plain error.

United States v. Olano

Issue- whether the presence of alternate jurors during jury deliberations was a ‘plain error’ that the
Court of Appeals was authorized to correct under F.R.Crim.P. 52(b)

Olano and Gray served on the board of directors of a savings and loan association and were indicted on
multiple federal charges for their participation in an elaborate loan ‘kickback’ scheme. The parties
agreed to 14 jurors to be selected to hear the case and 2 alternates.
The Distrct Court concluded that Hilling’s counsel was speaking for the other defendants as well as his
own client regarding the alternates not participating in the deliberations – no other counsel intervened
nor object later the same day when the court instructed the jurors.

The respondents were convicted on a number of charges- The Court of Appeals reversed certain counts
for insufficient evidence and then considered whether the presence of alternate jurors during jury
deliberations violated F.R.Crim.P 24(c)- an alternate juror who does not replace a regular juror shall be
discharged after the jury retires to consider its verdict.

A court of appeals may correct the error (either vacating for a new trial or reversing outright) only if it is
‘plain’ and ‘affects substantial rights.’

1st limitation on appellate authority under Rule 52(b)- there indeed be an ‘error’- deviation from a legal
rule is ‘error’ unless the rule has been waived.

Forfeiture is the failure to make the timely assertion of a right, waiver is the ‘intentional relinquishment
or abandonment of a known right.’
-Mere forfeiture, as opposed to waiver, does not extinguish an ‘error’ in Rule 52(b).
-If a legal rule was violated during the district court proceedings and if the D did not waive the rule, then
there has been an ‘error’ within the meaning of 52(b) despite the absence of a timely objection.

2nd limitation is that the error be ‘plain’- ‘clear’ or ‘obvious’

3rd limitation- the plain error ‘affect substantial rights’- the error must have been prejudicial: it must
have affected the outcome of the district court proceedings.

The Court of Appeals should correct a plain forfeited error affecting substantial rights if the error
seriously affects the fairness, integrity, or public reputation of judicial proceedings.

The presence of alternative jurors during jury deliberations is not the kind of error that affects
substantial rights independent of its prejudicial impact nor have the respondents made specific
showings of prejudice.

Respondents did not meet their burden of showing prejudice under rule 52(b) and because the
conceded error in this case did not affect substantial rights, the court of appeals had no authority to
correct it.. Reversed and remanded.

The Right to Appeal

There is no constitutional right to appeal but by statute or state constitution, a right of appeal is now
universal for all significant convictions. Once a state provides for appellate review, the review process
must not violate equal protection or due process rights.

Whatever the nature and scope of a right to appellate review, Ortega demonstrates that the right can be
waived or forfeited.
Ortega-Rodriguez v. United States

Petitioner was one of 3 D’s arrested, tried, and convicted of possession with intent to distribute and
conspiring to possess with intent to distribute, over 5 kilograms of cocaine. Petitioner did not appear for
sentencing and was sentenced in absentia to a prison term of 19 years and 7 months to be followed by 5
years of supervised release.

The problem in this case is that the petitioner, who fled before sentencing and was recaptured before
appeal, flouted the authority of the District Court, not the Court of Appeals.
-we cannot accept an expansion of this reasoning that would allow an appellate court to sanction by
dismissal any conduct that exhibited disrespect for any aspect of the judicial system, even where such
conduct has no connection to the course of appellate proceedings.

When a D’s flight and recapture occur before appeal, the D’s former fugitive status may well lack the
kind of connection to the appellate process that would justify an appellate sanction of dismissal.
Judgment of the Court of Appeals is vacated.

Ethical Considerations

Smith v. Robbins- no one has a right to a wholly frivolous appeal

Appeals of Last Resort

A D who fails to obtain a reversal on direct appeal may make collateral attacks on the conviction, such as
a petition for a writ of habeas corpus.

Collateral Remedies

Most common form- habeas corpus petition. Failure to prevail in state habeas proceedings will not bar a
subsequent federal habeas action, in fact, the filing of a state petition is often a necessary component of
the federal petition.

Habeas Corpus is a collateral attack because it is not a continuation of the criminal process but a civil suit
brought to challenge the legality of the restraint under which a person is held. The petitioner, has the
burden to prove by a preponderance of the evidence that his confinement is illegal.

Williams v. Taylor

Terry Williams (”Mr. Willliams”) was convicted of capital murder and received a death sentence for
robbery and murder in Virginia in 1985. On appeal, Mr. Williams claimed ineffective assistance of
counsel because his attorney failed to introduce certain mitigating evidence during the sentencing
portion of his trial.

Under the opening clause of 2254(e)(2), a failure to develop the factual basis of a claim is not
established unless there is lack of diligence, or some greater fault, attributable to the prisoner or the
prisoner’s counsel. Now the statutory test- if there has been no lack of diligence at the relevant stages
in the state proceedings, the prisoner has not ‘failed to develop’ the facts under 2254(e)(2)’s opening
clause and he will be excused from showing compliance with the balance of the subsection’s
requirements. We find lack of diligence as to one of the three claims. Petitioner did not exercise the
diligence required to preserve the claim that nondisclosure of Cruse’s psychiatric report was in
contravention of Brady v. Maryland- the report was prepared before petitioner was tried yet it wasn’t
mentioned by the petitioner until he filed his federal habeas petition and attached a copy of the report.

-If a federal district court grants a hearing on the habeas petition, both the petitioner and the
government must be given the opportunity to present evidence.

In order to promote speedy punishment and the finality of criminal justice proceedings, the AEDPA
created a rigid 1-yaer limitation for filing a petition for habeas corpus relief. If the habeas petition is
filed in due time, a state prisoner seeking habeas review in a federal court must meet 4 requirements:
(1) custody, (2) a violation of federal law, (3) exhaustion of other remedies, (4) the absence of
procedural default.

Custody

A person is in custody when he is presently serving a sentence for the conviction challenged by the writ,
or when he has been released from confinement subject to the control of the parole board, probation
officer, or a court which imposed a suspended sentence.
-A prisoner serving consecutive sentences is in custody for purposes of challenging any of the sentences.
-writ may not be used to attack a conviction that merely imposed a fine or collateral civil disability not
resulting in incarceration
-Petitioner may not attack a sentence that has been fully served unless the prisoner is serving another
sentence that was enhanced by the challenged sentence.

Garlotte is typical of the cases defining custody in the context of a claim by the state that the habeas
petition is moot because the petitioner is no longer in custody.

Garlotte v. Fordice

Garlotte is incarcerated under consecutive sentences however, Garlotte does not challenge a conviction
underlying a sentence yet to be served but rather Garlotte seeks to attack a conviction underlying the
sentence that ran first in a consecutive series, a sentence already served, but one that nonetheless
persists to postpone Garlotte’s eligibility for parole.
Hold-Garlotte remains in custody under all of his sentences until all are served and now may attack the
conviction underlying the sentence scheduled to run 1 st in the series.

Violations of Federal Law

Only Federal issues are cognizable in federal habeas proceedings; state constitutional or statutory
violations are not.
The writ of habeas corpus focuses on the legality of the prisoner’s detention under the 14 th Amendment
right to due process, rather than his ultimate guilt or innocence.

A conviction obtained in violation of a federal statute does not warrant habeas review unless the
statutory violation qualifies as a ‘fundamental defect which inherently results in a complete miscarriage
of justice, or an omission inconsistent with the rudimentary demands of fair procedure.’

Stone v. Powell

Powell was arrested for violating a vagrancy ordinance but was later charged with murder and convicted
on the basis of evidence seized during a search pursuant to the vagrancy arrest. Powell asserted that the
vagrancy ordinance was unconstitutional and the subsequent arrest and search were illegal.

Issue- whether state prisoners who have been afforded the opportunity for full and fair consideration of
their reliance upon the exclusionary rule with respect to seized evidence by the state courts at trial and
on direct appeal may invoke their claim again on federal habeas corpus review.

We conclude that where the State has provided an opportunity for full and fair litigation of a 4 th
Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that
evidence obtained in an unconstitutional search or seizure was introduced at his trial.

Although the court’s opinion in Stone v. Powell led to speculation that D’s might be denied habeas
corpus review of their constitutional claims, the SC refused to extend that limiting principle to legal
issues which are guilt-related.

Williams v. Taylor

Facts of the Case: 

After Terry Williams was convicted of robbery and capital murder; his punishment was fixed at death. In
state habeas corpus proceedings a judge determined that his conviction was valid. However, the judge
also found that Williams' counsel's failure to discover and present significant mitigating evidence
violated his right to effective counsel and recommended that he be re-sentenced. Rejecting this, the
Virginia Supreme Court held that Williams had not suffered sufficient prejudice to warrant relief. In
habeas corpus proceedings under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), a
federal trial judge also found that the death sentence was constitutionally weak on ineffective-
assistance grounds. The court, under the AEDPA, concluded that the Virginia Supreme Court's decision
"was contrary to, or involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States." In reversing, the Court of Appeals determined
that it could not conclude that the Virginia Supreme Court's decision on prejudice was an unreasonable
application of standards established by the Supreme Court.
Question: 
Was Terry Williams' constitutional right to the effective assistance of counsel violated? Was the
judgment of the Virginia Supreme Court refusing to set aside Williams' death sentence "contrary to, or
involved an unreasonable application of, clearly established Federal law, as determined by the Supreme
Court of the United States?"
Conclusion: 
Yes and yes. In a judgment announced by Justice John Paul Stevens, the Court, with different majorities
of Justices for each holding, held that Williams had been deprived of the constitutional right to the
effective assistance of counsel and that the Virginia Supreme Court's refusal to set aside the Williams
death sentence was a decision that was contrary to or involved an unreasonable application of clearly
established federal law, as determined by the Court. This conclusion followed from "'a reasonable
probability that the result of the sentencing proceeding would have been different' if competent counsel
had presented and explained the significance of all the available evidence.'"

Carey v. Musladin

This court has recognized that certain courtroom practices are so inherently prejudicial that they deprive
the D of a fair trial. In this case, a state court held that buttons displaying a victim’s image worn by the
victim’s family during respondent’s trial did not deny respondent his right to a fair trial. Prior to opening
statements, Musladin’s counsel moved the court to order the Studer family not to wear the buttoms
during the trial. The court denied the motion stating that it saw ‘no possible prejudice to the D.’

It cannot be said that the state court unreasonably applied clearly established federal law. No holding of
this Court required the CA Ct of Appeal to apply the test of Williams and Flynn to the spectators’
conduct here. Therefore, the state court’s decision was not contrary to or an unreasonable application
of clearly established federal law.

Exhaustion of Remedies

Habeas corpus relief usually is unavailable unless the petitioner has exhausted the remedies available in
the state courts. She must present the substance of her claim to the state courts in order to give them a
fair ‘opportunity to apply controlling legal principles to the facts bearing upon her constitutional claim.’
-To satisfy the exhaustion requirement, a petitioner must present her claims to the state’s highest court
even though its review is discretionary and even though that court does not address her claim in a
written opinion.
-State prisoners must use all means available in the state system to correct the alleged error, federalism
considerations simply will not permit a state prisoner to bypass the state courts and initiate the first
review of his conviction in the federal courts.

Government may waive exhaustion requirement.

Abuse of the Writ and Procedural Default

1. Successive Petitions as an Abuse of the Writ

The exhaustion requirement does not preclude habeas review, it merely delays such review.
Slack v. McDaniel

Antonio Tonton Slack was convicted of second-degree murder in Nevada. In 1991, after an unsuccessful
direct appeal, Slack filed a petition for a writ of habeas corpus in federal court. In federal court, Slack
attempted to litigate claims he had not yet presented to the Nevada courts and was prevented from
doing so. Slack, therefore, filed a motion to hold his federal petition in abeyance while he returned to
state court to exhaust his new claims. The Federal District Court ordered the habeas petition dismissed
and granted Slack leave to file an application to renew upon his exhaustion of state remedies. In 1995,
after unsuccessful state post-conviction proceedings, Slack filed again in the federal court. The state
moved to dismiss, arguing that Slack's petition raised claims that had not been presented to the state
courts and that claims not raised in Slack's 1991 federal petition had to be dismissed as an abuse of the
writ. The District Court granted the state's motion. Slack then filed a notice of appeal. The court denied
Slack leave to appeal, concluding the appeal would raise no substantial issue. The Court of Appeals also
denied Slack leave to appeal.

Question: 
If a person's petition for a federal writ of habeas corpus is dismissed without prejudice for failure to
exhaust state remedies and is re-filed after those remedies are exhausted, are any claims not raised in
the first petition "second or successive" and abusive of the right?
Conclusion: 
No. In an 7-2 opinion delivered by Justice Anthony M. Kennedy, the Court held that a federal habeas
corpus petition filed by a state prisoner, after an initial petition was dismissed without adjudication on
the merits, does not constitute a "second or successive" petition, subject to dismissal for abuse of writ.
That "a vexatious litigant could inject undue delay into the collateral review process," wrote Justice
Kennedy, can be countered, "the State remains free to impose proper procedural bars to restrict
repeated returns to state court for postconviction proceedings."

2. Procedural Default

The procedural default rule requires that if a state court rejects a habeas petitioner’s federal
constitutional challenge on the adequate and independent state ground that the claim is defaulted
under a state procedural rule, a federal habeas court is ordinarily precluded from reviewing that claim
unless the petitioner can show cause for the default and prejudice resulting from it.
-The most common form of procedural default is the D’s failure to present a federal constitutional claim
to the trial court and thus preserve the issue for appellate review. The consequences of a procedural
default is that the petitioner may be barred from judicial review of the forfeited claim in both state and
federal courts. (deals with the issue when there is no hearing on the constitutional challenge in ANY
state or federal court)

Wainwright v. Sykes
Sykes was convicted of third-degree murder after a jury trial in the Circuit Court of DeSoto County,
Florida. Sykes testified that on the evening of January 8, 1972, Sykes told his wife to call police because
he had just shot Mr. Gilbert. When police arrived at Sykes’ trailer home, police found Mr. Gilbert dead of
a shotgun wound. Shortly after their arrival, Sykes approached police and volunteered that he had shot
Mr. Gilbert. Sykes’ wife confirmed his story. Sykes was arrested and taken to the police station. Once
there, he was read his Miranda rights and declined to have an attorney. He then admitted to shooting
Mr. Gilbert from the front porch of his trailer home. This evidence was admitted at trial through the
testimony of the two officers who heard it.
At no time during the trial was the admissibility of any of Sykes’ statements challenged by his counsel on
the ground that Sykes had not understood the Miranda warnings. The trial judge did not question their
admissibility on his own motion or hold a fact-finding hearing on the issue. Sykes appealed his conviction
but did not challenge the admissibility of the inculpatory statements. He later filed in the trial court a
motion to vacate the conviction and a petition for habeas corpus in the State District Court of Appeals
and Supreme Court, which for the first time challenged the statements made to the police on grounds of
involuntariness. Wainwright, on behalf of Florida, challenged the Fifth Circuit decision to order a hearing
in state court on the merit’s of Sykes’ contention. The United States Supreme Court (”Supreme Court”)
granted certiorari to consider the availability of federal habeas corpus to review a state convict’s claim
that testimony was admitted at his trial in violation of his rights under Miranda v. Arizona. The Florida
courts refused to consider the issue because of noncompliance with a state contemporaneous-objection
rule.

Held. Sykes’ failure to make a timely objection under the Florida contemporaneous-objection rule to the
admission of his inculpatory statements, absent a showing of cause for the noncompliance and some
showing of actual prejudice, bars federal habeas corpus review of his Miranda claim.

Claims of Actual Innocence as “Gateways” to Federal Habeas Corpus Review

Herrera v. Collins established that, standing alone, a claim of innocence is not sufficient to warrant
federal habeas review. Such claims, however, are a vital component (a gateway) of petitioners’ attempts
to gain habeas review otherwise barred by the procedural default rule.
I LOVE U

KEEP UP ALL THE HARD WORK STUDYING