Adjudication Outline

Criminal Procedure: Adjudication Outline Pretrial Detention and Release Assignment One: Bail; Preventive Preventive Detention –  Detention –  Pages  Pages 939-959; Bail Reform Act Rule 46 I. Stack v. Boyle: Excessive Bail Bail A. Rule: Excessive Bail: Any amount of bail that is more than necessary to ensure ‘s presence at trial. B. Rule:  Factors:  Factors: 1. Severity of crime (usually longer sentence, so more incentive to flee) i. Why death penalty cases do not grant bail 2. Evidence of guilt (stronger evidence increases incentive to flee) 3. Wealth (the more one has, the more the court is likely to impose to ensure appearance) 4. Ties to the community (more  has, the less incentive one has to flee) i. Married? 5. Ties outside of the community (more likely one will flee) i. Foreign harbor? 6. Criminal record (can show that the  has shown up before) C. Definition:  Bond  1. The pledging of money or a financial bond that the  will forfeit if he fails to show up as requires, or if he otherwise violates the terms of his release. 2. Why we permit it: i. Presumption of innocence ii. Resource constraints iii. The impact on being able to mount a defense a. Can keep working and can therefore pay for it  b. Be with the family and will lower the burden/stress b urden/stress of a trial 3. When are people released on bail? i.  Field release –  release –  issued  issued a summons (never placed in custodial arrest) –  arrest) –  just  just a demand that one appear ii. Stationhouse release –  release –  non  non judicial (often to sober up or cool down) –  down) –  given  given summons to appear in court. iii.  Judicial release –  release –  4  4 types a. Releasing on my own recognizance (ROR)  Can impose non-financial considerations (e.g. do not break the law) BRA - § 3142(b) always a condition cond ition that  commit no new crimes. o a. Once it is a condition, it is not only a new crime, but a violation of the first crime‘s bail.  b. Do not mess with the evidence c. Surrender passport, stay within x miles or state/city limits  See document Courts have enormous power to place restrictions on the release o a. E.g. stay away from x person, no contact with crime family A serious concern is always to ensure that the integrity of the system is kept intact. o  b. Financial conditions  Unsecured bond –  bond –  a  a promise to pay Deposit bond –  bond –  must  must pay up front a percentage of the full bond  Full bond –  bond –  put  put it all up   Bail bondsmen o  Not an officer of the court 1

o

o o

Pledge to the court that the bondsmen will make the payment if the  does not appear a. Some jurisdictions require the use of a bail bond smen or you sit in jail They make people show up for trial –  trial –  huge  huge financial incentive In general, they do not have the same protections of law enforcement, but they often do not face the same constitutional con stitutional constraints.

II. Bail Reform Act of 1984 (Breakdown of Sections & Purposes)  §3141: General authority to release or detain Ds pending trial or pending sentence and appeal  §3142(a): Specifies what that authority is: judicial officer has four choices: (1) Release on OR (own recognizance) or unsecured bond o (2) Release on conditions (financial or otherwise) o o (3) Temporary detention to permit revocation of bail o r deportation (4) Actual Detention o  Options themselves laid out in subsections (b), (c), (d), and (e), respectively  (e): Detention allowed only AFTER a hearing  (f): When you can have a hearing  (g): What factors are considered at hearing (see above)  (h) and (i) tell what type of order judge must issue  (j): Presumption of Innocence o ―Nothing in this section shall be construed as mod ifying or limiting the presumption of innocence.‖ 18 U.S.C. 3142(e)  (2) In a case described in subsection (f)(1) of this section, a rebuttable presumption arises that no condition or combination of conditions will reasonably assure the safet y of any other person and the community if such judicial officer finds that –  that –  (A) the person has been convicted of a Federal offense that is described in subsection (f)(1) of this o section, or of a State or local offense that would have been on an offense described in subsection (f)(1) of this section if a circumstance giving rise to Federal jurisdiction had ex isted; o (B) the offense described in subparagraph (A) was committed while the person was on release  pending trial for a Federal, State, or local offense; and (C) a period of not more than 5 years has elapsed since the date of conviction, or the release of the th e o  person from imprisonment, for the offense described in subparagraph (A), whichever is later. III. U.S. v. Salerno: Pre-Trial Detention A. Rule: In addition to being a flight risk, a suspect may be held prior to trial trial if he or she is poses a danger to the community. 1. In order to be detained, hearing is held with counsel present and ―the court must find by clear and convincing evidence either  that  that  is a flight risk or  that  that no release conditions will ensure the safety of the community.‖ i. Court finds that pre-trial detention is regulatory rather than punitive (for 5A DP Claim) ii. Since there is no right to bail, no problem with Congress adding this under the BRA (8A) iii. This is an allocation of the burden of proof, and does not dictate the eventual outcome (presumption of innocence argument) a. Slippery Slope: Hendrix v. Kansas: Kansas: Civil detainment ok after sentence concluded for sexual  predators. 2. This case marks one of the few times were the government is permitted to make a prediction pred iction about future dangerousness The Charging Decision Assignment Two: Prosecutorial Discretion; Limits on the Charging Power –  Power –  Pages  Pages 961-87 2

I. Charging Decision: The Prosecutor Runs the Show A. US Constitution: Art. II, II, §3: the executive branch shall take care that the laws be faithfully executed. B.  Factors influencing  Factors influencing whether to bring a charge: 1. Strength of the evidence i. Process as punishment a. The national district attorney‘s association should file charges that he or sh e believes adequately encompass the accused‘s criminal activity and which he or she reasonably reasonabl y  believes can be substantiated by admissible evidence at trial.  b. The ABA says it is unethical to file or continue a case unless you have hav e evidence to support a conviction. ii. Jury nullification a. A factor that can be considered  b. The potential that —   — despite despite the law and facts that create a sound, prosecutable case — the the factfinder is likely to acquit the defendant be cause of the unpopularity of some factor involved in the prosecution or because of the overwhelming popularity of the defendant or his/her cause, is not a factor prohibiting prosecution. Does not mean you cannot cann ot consider; just says it does not prohibit filing charges. o 2. Seriousness of the crime and impact on the  3. Deterrence 4. ‘s criminal record 5. ‘s cooperation 6.  presence of non-prosecution alternatives i. diversion programs, drug treatment, restitution 7. impact on the victim 8.  prosecution priorities II. Inmates of Attica Correctional Facility v. Rockefeller: A. Rule: Courts cannot require a Prosecutor to bring a charge 1. Why no Judicial Oversight? i. Separation of power ii. Standing iii. Courts are not competent to review charging decision a. There are many things a prosecutor must decide iv. Might reveal grand jury information III. U.S. v. Batchelder: Selecting the Charge A. Rule: If two statutes overlap, the P has the choice of under which statute to charge charge a . 1. Limits: Cannot charge based on discrimination. IV. Challenges to Prosecution Decision A. Selective prosecution –  prosecution –  equal  equal protection 1. Similarly situated people not prosecuted and 2. Decision to prosecute based on impermissible criteria (race, religion, 1A) B. Vindictive prosecution –  prosecution –  due  due process 1. P had bad motive as to this , and 2. Similarly situated people not prosecuted i. Assumed when  exercises right to appeal and more charges are added. ii. Otherwise, it is presumed prosecution acted in good faith. C. Malicious prosecution –  prosecution –  civil  civil action for damages 1. Often § 1983 claims 2. Seeking damages for arrest and charge without probable cause 3

i.

To prevail, must show that there was no probable cause to bring the case in the first place a. Sometimes called retaliatory prosecution V. U.S. v. Armstrong: Selective Prosecution Claim: Discovery A. Rule: In order to compel discovery in a selective prosecution prosecution case, a  must give credible evidence that there is a discriminatory effect motivated by a discriminatory purpose. 1. Discriminatory effect i. Similarly-situated people not being prosecuted 2. Discriminatory purpose i. Disparate impact not enough ii. ―Because of race,‖ not ―knowing racial impact‖ Grand Juries Assignment Three: Background; Secrecy –  Secrecy –  Pages  Pages 989-1004; Rule 6 I. Background A. Basics: th 1. 5 : can‘t be charged for a felony unless indicted by a grand grand jury i. does not apply to the states 2. 23 citizens i. will often hear many cases as opposed to a single case 3. two functions: i. 1) investigate (sword) ii. 2) screen charging decisions (shield) 4. timing: sometimes before arrest, arrest, sometimes after arrest arrest (most common) B. Secrecy 1. Who has been called is secret i. Cannot retaliate against a witness in a grand jury a. 18 USC § 1513 Includes interfering with employment  C. Why do we keep it secret? (Rule 6(b) –  6(b) –  Information  Information Presented to the Grand Jury) 1. Prevent target from escaping 2. Prevent target from trying to influence jurors 3. Prevent target from tampering with witnesses 4. Give witnesses a reason to testify fully, without fear that testimony will get out 5. Protect the target‘s reputation i. Witnesses, however, may report everything that they said or happ ened a. First amendment considerations  b. Impractical to keep them quiet II. In re Sealed Case: The scope of Rule 6(e): Matters Occurring Occurring Before the Grand Jury A. Rule: A P‘s statements about his/her investigation implicate implicate Rule 6e only when they directly reveal GJ matters (with certain exceptions). 1. Also covers matters ―likely to occur‖; can include discussions of strategy and direction of investigation. i. Information actually presented to the GJ is core Rule 6 (e) material that is afforded broadest  protection from disclosure. a.  Not everything in a P‘s investigation is required to be kept secret  ―it is . . . necessary to differentiate between statements b y a prosecutor‘s office with respect to its own investigation, and statements by a prosecutor‘s office with respect to a grand jury‘s investigation, a distinction of the utmost significant.‖ 4



 

Using the word ―I believe‖ can reflect the belief of Ps; not saying an indict ment will be sought, for example, but that Ps believe it should happen This can make the difference o Facts already known to the public ―Where the general public is already aware of the information contained in the  prosecutor‘s statement, there is no additional harm in the prosecutor prosecutor referring to such information‖

III. Subpoena Power A. Can compel: 1. Witnesses  to appear and give testimony under oath ( subpoena  subpoena ad testificandum) testificandum) i. Categories of Grand Jury Witnesses a. Target: a person for whom there is is believed to be evidence that would lead lead to an indictment  b. Subject: person who is not a target target but against whom evidence may arise arise that would change the person into a target c. Witness: person who has information information relevant to GJ, but is neither target nor subject subject 2. Documents ; can compel a witness to produce documents ( subpoena  subpoena deces tecum) tecum) B. Limits 1. Witness may not  produce  produce i. Privileged communications 2. Statutory limits i. Stored Communications Act 18 U.S.C. § 2703 a. Stored emails from service provider  Within 180 days of email only be a search warrant After 180 days of email email by GJ subpoena if tell tell customer in advance (exception: if  notice would ―seriously jeopardy‖ a criminal), otherwise by warrant  b. Data on customers and online session times by GJ subpoena Other information by warrant  IV. Rights of the Defendant A. 5A; not silence 1. Can be held in civil co ntempt for a refusal to answer. i. Civil contempt: fined or put in jail until the conclusion of the GJ term a. “Show Cause Order ‖: ‖: If witness fails to testify pursuant to a subpoena, chief judge can issue issue this order to a witness requiring the witness to explain why h e/she should not be held in contempt. One of 3 things happens when there is civil contempt:  GJ term ends o o Witness testifies Judge gives up and thinks the coercive power is not working o ii. Criminal contempt: persona has willfully refused to obey a court order order or engaged in improper conduct, can be punished even if he is now willing to comply. a. This is punishment; not a coercive measure i.e. punishment for past action, not a measure to get the person to perform some action  B.  NO right to an attorney 1. Can ask to leave, however, to speak with an attorney, and then re-enter i.  Anything  stated  stated in the GJ can be held against the witness. Assignment Four: Investigations; Immunity –  Immunity –  Pages  Pages 1004-1034; Rules 6, 17 I. U.S. v. Dionisio: Reasonableness of a Subpoena A. Rule: GJ may subpoena subpoena so long as the request is reasonable. 5

1. Requiring Requiring a person to appear is not a ―seizure‖ for 4A purposes. i. At some point, may be unreasonable, but b ut arguments that the subpoena violates the C onstitution is a tough argument. 2.  Best  Argument   Argument to Quash: Rule 17(c)(2) 17(c)(2) i. on motion by recipient, ―court may ma y quash or quash or modify the subpoena if compliance would be unreasonable or oppressive.‖ II. U.S. v. R. Enterprises: Enterprises: Application of Rule 17(C)(2) A. Rule: Very difficult to quash even under this rule 1. There must be ―no ―no reasonable possibility that possibility that the category of category of materials the government seeks will  produce information relevant to the general subject of the grand jury‘s investigation.‖ B. Rule: In general, the GJ‘s subpoena power is ―potent‖ and ―very broad.‖ 1. Information need only be a link in the chain of evidence needed evidence needed to prosecute a  for a federal crime. III. Immunity : Core Idea: In return return for information, witness immunized from prosecution. A. § 6002: Says the witness must testify, but no testimony compelled under the order (or (or any information directly or indirectly derived from such testimony or other information) information) may be used against the witness in any criminal case. B. § 6002: The court shall issue an order requiring testimony. i.e. the judge only plays an administrative administrative role. The P makes the call whether there will be immunity. 1. Transactional Immunity: Immunity: (Immunity by agreement –  agreement –  done  done by K or agreements) i. The government will not prosecute  for the crimes arising from the transaction in question a. These come from ―pocket‖ or ―letter‖ agreements You give Transaction because  You want them to be very cooperative o They have a lot of useful u seful information o a. e.g.. Monica Lewinsky  can be a very broad grant of immunity 2. Use Immunity: (Forced immunity) i. The government will not use the immunized immuniz ed testimony that  provides, directly or indirectly, to  prosecute me. C. Concerns over immunizing: 1. Immunizing the wrong person 2.  Not sure what the person will give you; want to make sure you are getting a lot 3. Credibility of the witness is hurt by immunization; juries hate it. D. How to get the info 1. Have a ―proffer session‖ whereby the witness is immunized for that particular time, e.g., ―queen for a day letter,‖ and then parties can negotiate afterwards to determine the importance of the testimony. IV. Kastigar Hearing A. Occurs when P tries to prosecute a witness who was given immunity 1. ―Heavy‖ burden placed upon the P to demonstrate that there was an independent, legitimate source of information. i. Cannot be directly or indirectly related indirectly related to the testimony given by b y the witness. a.  No inevitable source doctrine; only independent only independent source doctrine. V. U.S. v. Hubbell: Connection between 5A and and Subpoena Power (target was immunized) A. Rule: 5A protects the target target of a grand jury investigation investigation from being compelled to answer questions designed to elicit information about the existence of sources of potentially incriminating evidence. B. Rule: It is not what is written down. That is not protected. But the act of handing it to the prosecution may be protected. 1. Concern in this case was that the government asked for 13k documents. It was a ―fishing shing expedition.‖ It was a ―step in the chain‖ of prosecuting the target. 6

C. Today’s Standard: If government can state state with reasonable particularity the knowledge of the documents, then no Hubbell problem. If government is unaware unaware of the existence of the documents, then there is a Hubbell problem. 1. Court was concerned with the fact fact that this was giving the key to a safe. The government did not know about these particular documents. i. This was Derivative use of the documents. Cannot do that. a. If government was previously aware, however, the act of production adds nothing. Assignment Five: Preliminary Hearings; Grand Jury Screening; Indictment Challenges  –  Pages  Pages 1034-54; Rules 5.1, 6

I. Screening the Charge A. PreTrial Screening 1. Arrest Warrant –  Warrant –  Magistrates  Magistrates decides if there is probable cause; OR 2. Post-Arrest –  Post-Arrest –  Gerstein  Gerstein Hearing (within 48 hours) –  hours) –  Magistrate  Magistrate decides if there is probable cause. II. The Sequence A. Option 1 1. Arrest –  Arrest –  Prelim  Prelim Hearing –  Hearing –  (bound  (bound over to) Grand Jury B. Option 2 1. Grand Jury indictment –  indictment –  Arrest  Arrest III. Preliminary Hearings A. Mechanics 1. Within two weeks if in custody, three weeks if not  in  in custody. 2. Adversarial i. P must put on case to show PC that  committed crime ii.  entitled to counsel iii.  can challenge P case, put on own case 3. Magistrate Judges makes bindover decision B. Purposes 1. : screening, discovery 2. P: perpetuate testimony 3. Social Perspective: Keeps P from bringing bringing false charges; charges; may make  want plea. i. Government almost always wins. always wins. C. Rule 5.1: Preliminary Hearing must take place unless 1.  waives the hearing 2.  is indicted (the important one) 3. gov‘t files an information under Rule 7(b) charging the  with a felony 4. gov‘t files an information charging the  with a misdemeanor. i.  Note: If no PC found at Prelim, jeopardy does not attach. a. Reasons a  would waive:  GJ may find other crimes May help for a plea deal   b. Reasons a  would not waive:  may just get the case thrown out make it more difficult on the P  IV. U.S. v. Costello: On what may the GJ rely rely to indict? A. Rule: GJ may rely rely entirely on inadmissible to indict. B. Rule: Indictments that are valid on their face face are valid. Period. 1. ―An Indictment returned by a legally constituted a nd unbiased GJ like an information drawn b y the P, if valid on its face, is enough to call for a trial of the charge on the merits. The 5A requires nothing more.‖ 7

i.

Very difficult to review a GJ indictment on the merits a. Courts do not want mini-trials  b. Courts also want GJs kept separate. C. Rule: Effect of this is to wipe out challenges on the merits merits of the evidence. Can only proceed if if there was prosecutorial misconduct, such as perjured testimony. V. Indictment Challenges A. U.S. v. Williams: Does P have to provide exculpatory evidence? 1. Rule: P is not required to provide exculpatory evidence to the GJ. B. Bank of Nova Scotia: Scotia: When there is P misconduct in the GJ and  learns before trial before trial 1. Rule: Difficult to dismiss indictment: indictment: ―in the absence of demonstrated demonstrated prejudice to the accused, grand jury errors are not a basis for dismissing the indictment.‖ 2. Rule: Dismissal is appropriate ―only if it is established that the violation substantially influenced the GJ‘s decision to indict, or if there is grave doubt t hat the decision to indict was free from substantial influence of such violations.‖ i.  Need Misconduct and Prejudice C. US v. Mechanik: Defendants learns of rule 6 violations violations during  trial  trial 1. Rule: Once trial begins, errors are are harmless (in (in general). D. Type of Challenges where courts will intervene: 1. Presenting perjured testimony to GJ i. Prosecutor must be knowing or reckless as to falsity 2. Using GJ to uncover civil information rather than criminal i. Cannot be your intent 3. Telling jurors don‘t have to agree with ever ything in the indictment, just critical parts i. Indictment must be approved in its entirety 4. Misstate the law 5. Trying to improperly influence a GJ witness 6. Disclosing GJ information 7. Continuing to investigate after indictment returned i. Even if one of these takes place, still likely going to lose: a. Must show MISCONDUCT and PREJUDICE Scope of the Prosecution Assignment Six: Speedy Trial Right –  Right –  Pages  Pages 1055-1076; See Speedy Trial Act Rule 45 I. Barker v. Wingo: The Balancing Test A. Rule: The Right to Speedy Trial shall shall be evaluated under a balancing test weighing weighing the four factors with an emphasis on #3: (note: none are necessary or sufficient!) 1. Length of delay (triggering mechanism) i. Approximately one year (Doggett Footnote 1) ii. Courts inclined to permit longer delay for a serious offense 2. Reason for the delay 3. Defendant‘s assertion of the right (failure to do so weights heavily against th e defendant); defendant); 4. Prejudice to the defendant. i. Big concern is losing evidence (such as a witness). B. Rule: Court refuses to employ a 1) fixed time limit limit or a 2) demand demand rule: 1. To employ a fixed time limit would make the court a legislative body. 2. To employ a demand rule would be inconsistent with Zerbst and Court‘s approach to fundamental constitutional rights, and would also place the d efendant‘s counsel in a bad  position. C. Rule: The Speedy Trial Right differs differs from many other constitutional constitutional rights: 8

1. Delay causes a problem for the community, communit y, from suspect being out in the community commun ity to  permitting the defendant to manipulate the system 2. Can work in defendant‘s favor, such as a witness forgetting events or evidence being lost 3. More vague than other rights; tough to determine d etermine when it comes into play. D. Rule: Why we have the Speedy Trial Right: 1. Prevent oppressive pre-trial incarceration; 2. Minimize anxiety and concern of the accused; and 3. Limit the possibility that the defense will be impaired (most important) II. Doggett v. U.S.: Rule: Presumption of prejudice if delay is excessive. II. Vermont v. Brillon: Failure by state-appointed state-appointed defense counsel A. Rule: Failure of state-appointed defense defense counsel is not grounds for a speedy trial right violation III. Implications of the Speedy Trial Act: 18 U.S.C. § 3161 et seq. A. Rule: In the Federal System, the the STA has largely supplanted the 6A as a basis for for litigation 1. Act provides specific time limits when certain events must occur. i. 30 Days - Once the de fendant is arrested or served with a summons, prosecution must file an indictment or an information. a. If no Grand Jury for 30 days, then the Prosecution gets another 30 days. ii. 30 Days –  Days –  Must  Must give at least this time period from first appearance to trial. iii. 70 Days –  Days –  Time  Time after filing and making public the information or indictment or defendant‘s first appearance for when the trial must begin (later of the 2) iv. 90 days –  days –  Time  Time for beginning trial if the defendant defend ant is continuously detained. 2. Many exceptions - § 3161(h)(1-9) i. Delays caused by unavailability of the defend ant or a key witness, transportation needs, reasonable legal maneuvering by a codefendant, or ―other proceeding‖ involving the defendant. ii. Typically applied were defendant is source of delay a. Sometimes for Prosecution filing motions or interlocutory appeals iii. If a complicated pretrial process, likely to have delays. a. e.g. joinder and severance, parties need more time, time, and includes prep time for GJ hearings. iv. Continuances: Either party can seek, or judge can grant sua sponte. a.  Need for delay must outweigh defendant‘s interest in speedy trial  b.  Not permitted for court congestion or for a failure to prepare diligently. diligently. v. Flexibility allowed for meeting the ―ends of justice.‖ a. Even delays by open-ended continuances are generally excluded. B. Rule: Remedy for for a STA violation: Dismissal with or  without  without prejudice. 1.  Note the difference between 6A and STA: i. 6A: Always Dismissed with prejudice ii. STA: Dismissed with with or without prejudice a. Under STA, may end up just having to wait longer. C. Rule: Steps in a STA analysis where Defendant has the burden of showing violation. Prosecution can then rebut with showing delays are legitimate. 1. Find a start date i. Arrest, formal charge, first appearance 2. Count calendar days 3. Subtract exclusions IV. Zedner v. U.S.: Prospective Waiver A. Rule: Cannot prospectively waive under STA V. U.S. v. Lovasco: When does the clock start? A. Rule: 6A: Indicted or arrested/served summons 9

B. Rule: STA: 1) Arrested/summoned Arrested/summoned (30 days to indictment); or 2) indictment made public or first apperance, whichever comes later  (70  (70 days to trial) Assignment Seven: Joinder and Severance I. Joinder: Rule 8: A. Rule: A court may join offenses if offenses if they are 1. Of the same or similar character; or are 2. Based on the same act or transaction; or are 3. Connected with or constitute parts of a common scheme or plan. B. Rule: A court may join defendants if defendants if they are alleged to have participated in the same act or transaction, or in the same series of acts or transactions, constitute an offense or offenses. C. Rule: FRCP 13: The court may order that separate cases be tried tried together as though though brought in a single indictment or information if all the offenses and all defendants could have been joined in a single indictment or information. 1. Leipold mentioned that Rule 13 is not as important as Rule 8. 2. Just a procedural mechanism that relieves pressure of when offenses or defendants may be  joined. D. Benefits of Joinder: 1. If there is less evidence on one, may help you win in both as jury may disregard the other evidence for the stronger case 2. Time/money –  Time/money –  get  get it all done at once 3. Maybe increase chances of concurrent sentencing i.  Note: Joinder does not statistically affect the outcome of a trial. E. Potential Prejudice: 1. Jury will infer criminal disposition (halo effect) e ffect) 2. Jury will confuse the evidence 3. Will inhibit  from making a defense i. May want to get on the stand to defend against one when you may be open for cross on the other a. Really need to be able abl e to show that there was a direct d irect conflict; courts are worried about you changing your mind F. Likely outcome of motions: 1. Court affirm no severance all the time i. Relevance of trial evidence: if inadmissible, plays a role, but not dispositive. dispositive. 2. Courts love to use limiting instructions in this situation. II. Severance: Rule 14 A. Rule: If the joinder of offenses . . . appears to prejudice a defendant or the the government, the court may order separate trials of counts, severe the defendants‘ trials, or provide any an y other relied that justice requires. IV. U.S. v. Hawkins: Application of misjoinder A. Rule: Whether joinder was proper proper is a question of law, law, and misjoinder is not a constitutional error. B. Rule: If there is misjoinder, court will will reverse unless the error error results in no ‗actual prejudice‘ to the defendant ‗because it had no substantial and injurious effect or influence on determining the jur y‘s verdict.‘‖ 1. Indicia for determining ―actual prejudice‖ i. Whether the evidence of guilt was overwhelming and the concomitant effect of any improperly admitted evidence on the jury‘s verdict; ii. The steps taken to mitigate the effects of the error; 10

iii. The extent to which the improperly admitted evidence as to the misjoinder counts would have been admissible at trial on the other counts. C. Rule: Courts permit ―broad joinder‖ joinder‖ for efficiency purposes, but the requirements are not ―infinitely elastic.‖ 1. e.g. a ―mere temporal relationship is is not sufficient to establish the propriety of joinder. V. Zafiro v. U.S.: Mutually antagonistic defenses; ―finger pointing‖ A. Rule: Severance under Rule 14 should be granted only when ―there is a serious risk that a joint trial trial would compromise a specific trial right of one of the defendants, or prevent the jury from making makin g a reliable judgment about guilt or innocence.‖ 1. Court declined to adopt a bright-line bright-line rule here. Mutually antagonistic defenses may be sufficient, but it does not result in automatic severance. 2. Court concerned with the empty chair and being able to point the finger. VI. Gray v. Maryland: Application of Bruton. A. Rule: When a codefendant confesses and implicates implicates the other defendant, redacting the name or replacing it with another word is insufficient. Must hold separate trials. trials. VII. Recap: A. Rule: Two separate arguments. 1. First, argue that there was misjoinder. 2. Even if there was proper joinder, then argu e the resulting prejudice violates Rule 14. B. Rule: When the trial judge gets it wrong: 1. Under misjoinder, can remand for a new trial unle ss prosecution can show harmless error 2. Under failure to sever, defendant has the bu rden of showing that the trial judge abused abu sed its discretion. i. Even if severance should have been be en granted, prosecution can still show harmless error. a. e.g. overwhelming evidence of defendant‘s guilt. a. Even a Bruton problem may still be harmless error under this rule. Right to Counsel Assignment Eight: Eight: Effective Assistance Assistance of Counsel –  Counsel –  Pages  Pages 199-216, 232-41; Rule 44 I. Strickland v. Washington: Ineffective Assistance of Counsel A. Rule: In order to establish a claim for ineffective assistance of counsel, the  must demonstrate deficient performance and prejudice. 1.  Prejudice:  Prejudice: But for counsel‘s errors, errors, there is a reasonable probability probability that the result of the proceeding would have been different. i.  Reasonable Probability: Probability: One that undermines the confidence in the outcome. a. Outcome: Outcome: Sentence of conviction itself. itself.  Normally, must be a specific showing of prejudice (Cronic).  Cannot argue ―not enough enough time‖ with counsel. Must demonstrate how ―not ―not enough o time‖ led to a specific problem.  b.  Remember: No  Remember: No RIGHT to be offered a plea or to have the court accept it. 2.  Deficient Performance: The performance prong of Strickland requires a defendant to show that counsel‘s representation fell below an objective objective standard of reasonableness. B. Lockhart v. Fretwell: Even if there is deficient performance based on the current law (e.g. here, error of law), if law changes in the interim, court is to use current law. 1. So if it was deficient performance under the o ld law, but new law makes ma kes it moot, then no claim. C. Lafler v. Cooper: The mere fact that a ―fair ― fair trial‖ ensued does not foreclose a finding of prejudice arising from a plea bargain. 1. D who goes to trial instead of taking a more favorable plea may be b e prejudiced from either a conviction on more serious counts or the imposition of a more severe sentence. 11

D. Missouri v. Frye: The 6A right to effective assistance of counsel extends to consideration of plea offers that lapse or are rejected. 1. Ds must demonstrate reasonable probability both that they would h ave accepted the more favorable  plea offer had they been afforded effective assistance of counsel AND that the plea would have been entered without the prosecution‘s canceling it or the trial court‘s refusing to accept it II. When does the  have the right to Effective Assistance of Counsel? 1. Trial 2. Direct appeal th i. SCOTUS said that 14  DP adequate way a. If you screw up the appeal, you still make the claim under Strickland 3. Plea Bargaining (even if there is never a trial, you still this right) i. BUT, must show reasonable probability that would have refused to plead and would have gone to trial. a. Example: plead guilty to count ½ and dismissed 3 2-year sentence  Lawyer did no research into the case o  But co plead guilty to count 1, dismissed 2 and 3 1 year sentence o ii. Still not a viable claim; must show that he would wo uld have gone to trial. 4. A.  NOT 1. Discretionary appeals 2. Post conviction III. Requirements of  counsel: A. Basics: i. Act like a lawyer ii. Test the government‘s case iii. Duty of loyalty 1. no conflict of interest 2. consult with the client; keep them up-to-date o n important matters iv. strategic decisions are for lawyers a. this does not mean follow the orders; just keep th em informed. 3. Duty to investigate 4. Skill v. Even if you don‘t do one of of these 4 main things, still may not violate pron g 1 of Strickland. a. Courts are to evaluate based on how it was at the time; not hindsight! B.  Never a Strickland Claim: Trial strategy C. Clearly Meets Prong 1: 1. Fail to raise a statute of limitations defense 2. Fail to raise a timely appeal 3. Inconsistent strategies i. A valid strategy, however, can be arguing that the court be found guilty on one count as opposed to the higher counts. 4. Errors of law i. E.g. failed to introduce mitigation for death penalty; counsel said he did not know he could introduce it. a. Said could not establish intent b/c shot below the waist (Cooper) D. Time requirement for sentence to be prejudicial: 1. Even a few months difference in a sentence is sufficient to constitute prejudice. 12

Assignment Nine: Conflict of Interest –  Interest –  Pages  Pages 241-257; Rule 44(c) I. Types of Ineffective Assistance of Counsel A. Deficient lawyer (Strickland) B. Government interference 1. Actual or constructive denial of counsel 2. Preventing lawyer from talking to client overnight i. Different though than the 10-15 minute recess; SCOTUS said that is ok to bar counsel from talking. ii. Tough to point to what lawyer did wrong in these cases; but gov‘t did something that made it impossible for the defense lawyer to do the job. 3. Prevent  counsel from putting on proper case 4. Interference with right to retained counsel C. Conflict of Interest II. Cuyler v. Sullivan: The Standard for Conflict of Interest Interest th A. Rule: In order to establish a violation of the 6 Amendment‘s Right to counsel, a defendant ―must ―must demonstrate that an actual conflict of interest adversely affected his law yer‘s performance.‖ 1. This is a two-part test: 1) Actual  1) Actual  conflict  conflict and 2) adverse effect i. Prejudice is not required. a. Actual conflict where counsel is actively representing ― . . . the possibility of conflict is insufficient to impugn a criminal conviction.‖   b. Adverse effect:  must point to unfavorable decision made because of conflict. III. Mickens v. Taylor: 44c A. Rule: Rule 44c requires a judge to inquire if there are joined s, but not if the counsel represented another  in a substantially related matter, even if the court is aware of the prior representation. IV. Judges‘ Duty to Inquire A. Before trial: Easier standard 1. If there is an objection, the judge must  inquire.  inquire. i. Failure to do so results in an automatic reversal (H olloway). B. After Trial: More difficult difficult standard 1. Constitutional Duty: Inquire only if the judge ―knew or should have known‖ about potential conflict conflict (Sullivan). i. If judge does not inquire, still only reverse if  shows an actual adverse consequence resulting from the conflict. (Mickens). V. Rule 44c (would not have affected Sullivan) 1. Joint representation i. (A) Two or more s have been charged jointly under rule 8b or have been joined for trial under Rule 13; and ii. (B) The s are represented by the same counsel, or counsel who are associated in law practice. 2. Court‘s responsibility in cases cases of joint representation: The court must promptly inquire about the  propriety of joint representation and must personally advise each  of the right to effective assistance of counsel, including separate representation. Unless there is good cause to believe that no conflict of interest is likely to arise, the court must take appropriate measures to protect each ‘s right to counsel. 3. If judge fails to make inquiry, almost certainly must show an ―actual conflict that adversely affects lawyer‘s representation.‖ i.e. gives no separate remedy than than the constitution gives underMickens. under Mickens. i. Does not mean that the judge does not have to follow the rules; judge must do it. ii. There is a presumption that the judge will follow the rules. VI. Steps in this analysis: 13

A. Step 1: 1. Identify the source of the possible conflict i. More than 1  represented by a ―single‖ lawyer (including two lawyers in the same firm) ii. Can be one trial, can be more than one trial B. Step 2: Ask if  objected pretrial 1. If yes, trial judge must inquire and correct (probably give ne w lawyer) unless there is no evidence of conflict i. If no new counsel given or other correction made –  made –  courts  courts of appeals should reverse (Holloway) unless it turns out that there was no conflict on review. i.e. error was harmless. harmless. 2. If no, did trial judge still have duty to inquire? i. Rule 44c: must inquire in all multi- cases a. Mickens uncoupled duty of inquiry from what  must how post trial for reversal  b. ‘s burden lighter only if objected prior to trial c. Otherwise apply Sullivan test. VII. Notes VII. Notes on self-representation A. Indigent Defendants: 1. Do not get the right to choose cho ose their counsel like someone who can afford it 2. Do not have a right to someone who is not licensed 3. May represent yourself, however, even in a death penalty case i. Right to self-rep is only a only a trial right ii. Courts often appoint standby counsel in tough c ases VIII. Waiver? A. You can waive a conflict (Wheat), but court CAN require a separate lawyer. 1. Even though you make a knowing and intelligent decision to waive, courts have an independent interest in ensuring the proceedings in front of them are fair. IX. Types of Conflicts: Which Test to apply? A. Multiple representation –  representation –  Sullivan  Sullivan Test B. ‘s counsel facing other external pressures 1. Counsel may be a witness 2. Counsel threatened with disciplinary action 3. Sullivan sometimes, Strickland sometimes i. To the extent that there is a question, more courts apply Strickland C. ‘s counsel facing conflicting incentives incentives 1. Financial incentives i. e.g. no taking a guilty plea for movie rights. a. Apply Sullivan X. Anders Brief A. You get a case and you think there is nothing there 1. Permits counsel to seek leave to withdraw; must submit this motion. i.  Need to cite any portion that arguably gives rise to a claim for appeal and let client add own arguments. a. Courts don‘t like them. Same amount of work as a regular brief. Discovery and Disclosure Assignment Ten: Disclosure by the Prosecutor –  Prosecutor –  Pages  Pages 1135-63; Rule 16, 26.2 I. Overview A. Discovery : Refers to local rules; e.g. rule rule 16, must turn turn over

14

B. Disclosure : not a term of art, art, but refers to the the prosecutor‘s pre-trial pre-trial obligation to turn over certain types of information based on the constitution. 1. Arguments for Broad Discovery: i. Trials a search for the truth ii. Helps give  notices of charges iii. Unequal resources iv. Conserves overall resources v. Cases more likely to settle 2. Arguments for Narrow  Discovery: i. Facilitate perjury ii. Witness intimidation and tampering iii. Can lead to better information iv. Defense counsel much more likely to accept information given by government as opposed to going out on his/her own; that information that‘s out there ma y be better than what is given. v. Defense counsel can be busy, so more likely to accept at face value vi. Unfair to Prosecution (Learned Hand view) 3. Discovery Framework i. Read the rules: no two systems systems exactly alike ii. Know your judge and local rules iii. Largely statutes and rules, but a constitutional backdrop th a. 5 : privilege against self-incrimination self-incrimination th  b. 6 : right to counsel th th c. 5 /14 : right to due process (Brady) C. Rule 16: Governing rule for discovery in the Federal System 1. What a defendant gets: i. Own statements ii. ‘s criminal record iii. documents and tangible things iv. reports of examinations and test v. expert witness information a.  Notably, a defendant does NOT get a list of witnesses or witness statements statements D. Defendant‘s Statements –  Rule  Rule 16a1 1. Definition of Written or Record: i.  Near contemporaneous, near verbatim a. If not written or recorded,  can get part of the written w ritten report containing the substance of the statement IF the defendant knew he/she was talking to a cop. 2. Gets oral statements IF the defendant knew he/she was talking to a cop. E. Government‘s Discovery Obligations 1. 16a1d: criminal record 2. 16a1e: documents and objections i. Gun, drugs, fraudulent medical bills, crime scene ii. Material to , or gov‘t intends to use in case-in-chief case-in-chief 3. 16a1f: reports of exams and tests i. Fingerprint / dna ii. Material to , or gov‘t intends to use in case-in-chief case-in-chief 4. 16a1g: expert witness information F. Discovery from Government: 1. item within possession, custody, or control 2. P intends to use it in case-in-chief 3. Material to preparation of defense 15

4. Docs or objects belong to  G. What Defendant does not get: 1. Witness names and statements –  statements –  Rule  Rule 16a2 (Courts have said that while the rule does not explicitly ex plicitly state this, this is how they interpret it.) i. Jencks Act, Rule 26.2 a. Very similar to rule 16 in terms of a statement being nearly verbatim and nearly contemporaneous. ii. Only after witness testifies on direct at trial iii. Rationale: protection witnesses a. Court may give a continuance to prep 2. Work product (16a2) i. Material prepared by P or ―other government agents a gents in connection with the investigation inve stigation or  prosecution of case‖ II. Brady v. Maryland: The case A. Rule: ―The suppression by the prosecution of evi dence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.‖ prosecution.‖ 1. In other words, P violates the Due Process Clause by suppressing evidence i. This is a Post-Trial challenge a. Review of material: Need not ask; but if P says the info is not Brady, very difficult to get a  judge to do an in camera review. Only chance is if you give a specific request for a specific document.  b. Timing: Must Disclose in time for defendant to ―make effective use of the evidence‖ at trial.  Brady material is not discovery; can disclose late in the game.  Would want to turn it over earlier to make the th e defense think it is not important. o III. U.S. v. Bagley: A. Rule: Impeachment evidence is Brady material material B. Rule: ―Regardless of request, favorable evidence is material, and constitutional error results results from its suppression by the government if there is a reasonable probability that, probability that, had the evidence been disclosed to the def ense, ense, the result of the proceeding would have been different.‖ 1. A showing of materiality does not require demonstration by a preponderance that disclosure of the suppressed evidence would have resulted ultimately in the ‘s acquittal. i. The touchstone of Bagley‘s materiality aspect is ―reasonable ―reasonable probability‖ probability‖ of a different result. A reasonable probability of a different result is accordingly shown when the government‘s evidentiary suppression undermines confidence in the outcome of the trial. C. Rule: This is not a sufficiency sufficiency test. A  need not demonstrate that after discounting discou nting the inculpatory evidence in light of the undisclosed evidence, there would not have been enough left to convict. D. Rule: If there is constitutional error, no need to appl y a harmless-error review. E. Rule: Suppressed evidence to be considered collectively, not item by item. 1. Constitution does not demand an open file, and it is not violated every ever y time a prosecutor fails to turn something over that may be helpful. IV. Kyles v. Whitney: A. Rule: Materiality does not require preponderance, but also requires more than ―possibility.‖ 1. More than just ―it could have‖ changed ch anged the jury‘s outcome; it requires a prediction that the jury would  have  have done something different. V. Prosecutor‘s Duty to See that Justice that Justice is Done A.  Neither side can present perjured testimony B. P can‘t allow information known to be b e false to stand uncorrected ( Napue  Napue v. Illinois). 1. If you learn that something is false, you must correct that. 16

VI. U.S. v. Ruiz: Plea Bargain Bargain Discovery A. Rule: The Prosecution is not required required to disclose impeachment information information prior to entering into into a plea deal. 1. This does not answer whether other Brady Brad y material, such as the ballistics report, must be turned over ahead of time. Assignment Eleven: Disclosure by the Defense and Sanctions –  Sanctions –  Pages  Pages 1119-35; Rule 16 I. Overview A. Rule 16a2 1. Docs and Objects i. Docs, data, photos, tangible objects, buildings or places ii. P must have provided same information on ‘s request iii.  must intend to use the item in his case-in-chief (IMPORTANT) 2. Reports of exams and tests i. results of reports of any physical or mental exam, scientific tests ii.  intends to use in case-in-chief, or intends to call witness who prepared report 3. Experts i. witness‘ opinions, the bases and reasons for those opinions o pinions ii. witness‘ qualifications B. Rule 16b2 –  16b2 –  What  What the government does not get: 1. work product 2. statements made to the  or  attorney by: i.  ii. Government or defense witness or iii. A prospective government or defense witness II. Williams v. Florida: Alibi Requirement th A. Rule: The 5  Amendment does not bar disclosure of an alibi during pre-trial discovery. 1. Wardious v. Oregon: State must have reciprocal requirements requirements for alibi or the state is invalid under the Due Process Clause. B. Def endant‘s endant‘s Obligations Pre-Trial Pre-Trial 1. Rule 12.1 i. On request of P,  must give notice of any alibi ii.  must tell where he was, and witnesses (name, address, phone) who can corroborate a. In return, the P must then reveal witnesses who will put  at crime scene, plus any rebuttal witnesses If worried about safety, can get protective order to excuse compliance  2. Williams‘ rationale applied to series of affirmative defenses: i. Rule 12.2 –  12.2 –  notice  notice of intent to claim insanity ii. Rule 12.3 –  12.3 –  notice  notice of public authority defense a. Other defenses: Intoxication   Duress  Self-defense III. Sanctions for Defense –  Defense –  Rule  Rule 16d2 A. What can a judge do if lawyer fails to comply with a discovery order? 1. Continuance (most often used) 2. Allow other lawyer to argue to jury about suspicious circumstances of discovery 3. Make evidence inadmissible 17

4. Jury instructions 5. Mistrial 6. Hold party or lawyer in contempt 7. Dismiss 8. Judge can also use imagination 9. Refer to disciplinary committee IV. Taylor v. Illinois: A. Rule: Judge may preclude a witness from testifying for for the defense. 1. It is not per se unconstitutional (in violation of the 6A), but not recommended. i. Exception: Rule does not apply to the Defendant. B. Rule: Court does not have to impose the least serious serious sanction. 1. Judges are concerned with the following in failures to comply with a discovery order: i. How easy was it to comply? ii. Good or bad faith by counsel Guilty Pleas and Plea Bargaining Assignment Twelve: Guilty Pleas; Background on Plea Bargaining –  Bargaining –  Pages  Pages 1165-93; Rule 11 I. Arraignment –  Arraignment –  Rule  Rule 10 A. An arraignment must be conducted in open court and must consist of: 1. Ensuring that the  has a copy of the indictment or information; 2. Reading the indictment or information . . . stating the substance of the charge; and then 3. Asking the defendant to plead to the indictment or information. (this is the only thing a  has to do.) B. The defendant may waive arraignment with the judge‘s approval II. Pleas at Arraignment –  Arraignment –  Rule  Rule 11a A. Guilty, no guilty, nolo contendere (no contest) 1.  Nolo contendere: i.  does not admit guilt, just does not n ot contest charges ii. Result is virtually same as a guilty plea a. Still convicted, still sentenced in same way  b. Difference: not an admission of guilt guilt that can be used in a later later civil case. iii. Requires court permission, not P‘s iv. Court must consider parties‘ views and the public‘s interest 2.  No NGI -  just pleads guilty (NGI –  (NGI –  insanity)  insanity) B. Initial plea of NG can be changed later 1. Change of plea hearing C. Conditional Pleas: Rule 11a2 1. Can plead guilty and preserve issues for appeal 2. Requires approval by both the court and the P D. Plea colloquy: Rule 11b 1. Court ―may‖ put  under oath 2. Court ―must‖ address  personally in open court 3. Before accepting guilty plea, court must ensure i. Knowing ii. Voluntary iii. Factual basis III. Boykin: Rule: Constitutional error without an affirmative showing that the plea is intelligent and voluntary. A. Constitutional Protections in play: 18

1. 5A –  5A –  Self-incrimination  Self-incrimination 2. 6A –  6A –  Right  Right to a fair, public, and speedy trial IV. Requirements for a Valid Guilty Plea 1. Must be knowing  [R. 11(b)(1)] a. What‘s the  pleading guilty to  The nature of the crime to which he is pleading guilty More than being told what the crime is; must understand the elements of the crime o to which he is pleading guilty. nd a. E.g. 2  degree murder includes the intent to kill.  Must explain only the critical elements…but most courts will explain each element.   Need not inform of potential defenses  Must know the minimum and maximum penalties i. Rights giving up with plea  b. Jury trial c. Privilege against self-incrimination d. Right to confront accusers e. Have P prove case beyond reasonable doubt f. Right to counsel at trial ii. Consequences g. Max penalty h. Mandatory minimum i. Applicability of sentencing guidelines  j. Forfeiture k. Restitution   No need to inform of collateral effects o But recommended: if the plea is to a felony offense, consider asking the  Do you understand that a conviction may deprive you of valuable civil rights, such o as the right to vote, the right to hold public office, the right o serve on o n a jury, and the right to possess any kind of firearm? [If not citizen]: citizen]: do you understand that your plea plea of guilty may affect your o residency or your status with the immigration authorities? 2. Must be voluntary  [R. 11(b)(2)] i. Government may not coerce a guilty plea, but may induce or encourage one ii. Must ask  personally if threatened or received improper p romises a. ―Has anyone attempted in any way to force you to plead guilty or otherwise threatened you? Has anyone made any an y promises or assurances of any kind to get you to plead guilty (other than those in the plea agreement)?‖ 3. Must have a factual basis  [R. 11(b)(3)]. i. Court must have factual finding for each guilty plea a.  No standard  b. Judge just must be convinced that if trial occurred there would be a factual basis  NOT required for no contest plea.  ii. Can come from almost any source a. Recommended: have the  explain and assent to the crime(s) charged. iii. Particular issue in Alford pleas. V. U.S. v. Dominguez: Overturning a Guilty Plea on grounds grounds that the Judge did not abide by Rule 11 A. Rule: ―A  who seeks reversal of his conviction after a guilty plea, on the ground that the DC committed plain error under Rule 11, must show a reasonable probability that, but for the error, he would not have entered the plea.‖ 19

1.  Note: If judge forgets parts of Rule 11, can search the record to see whether the client was informed informed  by counsel; look for evidence that there was an explanation. i.  Not recommended, but it is a way to avoid a reversal. VI. U.S. v. Broce: What you lose when you plead guilty A. Rule: A defendant loses every claim when pleading guilty other than those that both (1) suggest the government lacks the power to punish the  at all and (2) can be resolved without further fact-finding. 1. In this case, the defendant waived his right to raise a double jeopardy claim. 2. Also waive claims like a Miranda violation. VII. North VII. North Carolina v. Alford: Alford pleas A. Rule: A criminal penalty may be imposed via a plea of guilty without an admission of guilt by the defendant. B. Rule: Under Rule 11c, courts require require a higher standard of a factual factual basis to ensure that a defendant is not pleading guilty to a crime that he/she did not commit. 1. Primary source of the factual basis is absent (the defendant), so a ―particularly high‖ standard is needed. i. U.S. Attorney‘s Manual on Plea Bargaining: a. Avoid except in the most unusual circumstances, even if no plea agreement is involved and the plea would cover all pending charges . . . can create an appearance of prosecutorial overreaching.  b. We want the jury to figure this out. Assignment Thirteen: Plea Bargaining Bargaining –   –  Pages  Pages 1193-98, 1206-23, 1246-50; Rule 11 I. U.S. v. Brady: Brady: Plea Bargaining is Constitutional A. Rule: Prosecution may induce a plea through a plea bargain 1. Can encourage or cause, but cannot coerce i.  No misrepresentations ii.  No threats iii.  No improper promises a. Offer to remove the death penalty is permissible is permissible II. Plea Bargain Process A. Parties work out a deal and (typically) reduce to writing 1. Rule 11(c)(1): In return for a guilty guilty plea, P may: i. Type A: A: no bring, or dismiss, other charges ii. Type B: B: recommend, or not oppose, sentence request a. Cannot withdraw plea iii. Type C : agree to specific sentence or range (must (must be approved by court) a. If judge rejects the deal,  is no longer bound to plea guilty and can withdraw plea iv. Other inducements: inducements: a. Reduce severity of charges  b. Obtain cooperation from  B. Parties go to court 1. Change of plea hearing if previously pled not guilty C. Reveal terms of agreement in court (r. 11(c)(2)) 1. For good cause can be done in camera D. Court considers whether to accept the plea 1. Type A, C, judge accepts, rejects, defers 2. Type B, judge tells  he/she cannot back out i.  Not bound by any recommendation; if you do not like it, now is the time to get out. Once I accept, you‘re screwed. 20

E. Hypos: 1. Argue that you were threatened by someone else i. PLEA OK: insufficient to get the plea thrown out; NEED STATE ACTION ACTION 2. P said had a really strong case and  should plea guilty; turns out that he did not have a strong case i. PLEA OK: OK: Maybe unethical, but ok 3. Offer to plead guilty to murder and I will no t seek the death penalty; turns out ou t that death penalty not available for this crime i. PLEA NOT OK: courts have said that lying lying about legal matters can make a decision decision to plead coercive. 4. Plead guilty or your business will be scrutinized by a grand jury for a long time. Guy is justu a bad guy, so P wants him to plead and might be vulnerable to an investigation to his business. i. PLEA OK: even if things are not related to the charge under consideration, as long as the P can do the act anyways, then it‘s ok. 5. P gives report saying that there were fingerprints everywhere;  then confesses. confesses. Turns out the report was fake. i. PLEA NOT OK: making up physical evidence or reports of physical evidence is sufficient coercive. 6. I will lower the charges to disorderly conduct from soliciting prostitution if you resign from State Attorney General i. PLEA –  PLEA –  MAYBE:  MAYBE: III. Bordenkircher v. Hayes: Prosecutorial Discretion A. Rule: Prosecution has wide discretion on how to proceed in a plea bargain 1. Court permitted P to reindict on a higher h igher crime when the defendant turned down an offer to plead guilty to a lesser charge 2. Court says this is not punishing him for exercising his trial right; P is ―open ly presenting the  with unpleasant alternatives of forgoing trial or facing charges on which he was plainly subject to  prosecution.‖ i. Court emphasized that the P had made the defendant aware of what would happen if he did not  plea guilty. IV. U.S. v. Pollard: Wired or Third-Party Pleas A. Rule: Wired Pleas are permissible permissible (e.g. not filing filing against wife) 1. Requires highest duty of good faith and fair dealing i. Was there PC to charge the other o ther person with the crime? ii. Did  admit that the plea was voluntary in colloquy? iii. Was court aware of the tied agreement? V. Newton V. Newton v. Rumery: Release-Dismissal Pleas A. Rule: Release-Dismissal Agreements are permissible 1.  Factors:  Factors: i. Sophistication of  ii. Whether the agreement was revealed to judge iii. Seriousness of the crime iv. If  was represented by counsel v. Legitimacy of reason for dismissal d ismissal B. Rule: (from class): class): Attorneys may not stipulate to facts they know to to be untrue C. Rule: (from class): class): Judges may not participate in plea negotiations negotiations (Rule 11(c)(1)) 11(c)(1)) VI. Plea Withdrawals: Withdrawals: Timing is everything A.  Before court accepts the plea 1. For any reason or no reason (Rule 11(d)(1)) B.  After plea accepted but before sentence 21

1. Any ―fair and just‖ reason or  i. If court rejects plea bargain (Rule 11(d)(2)) a. ―Fair and Just‖ reason:  No absolute right to withdraw plea  Must be more than a change of heart o Considerations  Was rule 11 followed? o How much time has passed? o C.  After sentence 1. Only on direct appeal or collateral attack (Rule 11(d)(3)) 2. Rule 11 violations –  violations –  harmless  harmless error applies 11(h) i. McMann v. Richardson: a. Coerced confession –  confession –  assume  assume would have been inadmissible at trial  b. Court: plea deal breaks illegality illegality  Conviction not based on confession; based on plea. c. Remedy for : ineffective assistance assistance of counsel D. Question: What about the the P? Can the P withdraw for any reason or no reason? 1. Uncertain, but in some states states say the P can also withdraw as well. i.e. anyone can change their minds until the court accepts the plea. i. However, both states and the feds just follow through on the deals. VII. Santobello v. New York: York: Remedies for Breach Breach of Contract (Plea Deal) A. Rule: P must keep their promises: ―When plea rests in any significant significant degree on a promise or agreement of P, such that it was part of inducement to plead, to plead, the promise must be kept.‖ B. Rule: Failure to keep a promise requires requires an automatic reversal. (No showing or prejudice req‘d) req‘d) C. Rule: Plea agreements construed against government. D. Remedies: 1. Start plea process again or 2. Specific performance i. Later case: Defendant‘s preference is relevant, but not decisive. Trials Assignment Fourteen: The Right to a Jury and Jury Selection –  Selection –  Pages  Pages 1271-74, 1297-1313; Rules 23-24 I. Overview A. Constitution: Constitution: Article III, III, § 2: ―Trial of all all crimes, except in Cases of Impeachment, Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed . . . .‖ th B. 6   Amendment : ―In all criminal prosecutions, the accused shall enjo y the right o a speedy and public trial, by an impartial jury of the t he State and district where in the crimes shall have been committed.‖ C. Duncan v. Lousiana: Rule: Right to a Jury Trial is a Fundament Right 1. Taylor v. Hayes: Right does not apply if imprisonment is six months or less. i. Must be a single charge; cannot stack charges. a. Why do we have it today? We keep it today because it adds credibility to the system; a sense of integrity if it was   just a judge. It also makes a difference for how we try cases. We want lawyers to talk to people in normal people language. You must persuade a normal person why this is right. We want a lay person judging the the credibility of witnesses witnesses and evidence. D. Size of the Jury 1. Federal: 12 i. Court can excuse 1 during deliberations without agreement of parties ii. Parties can stipulate jury of less than 12 22

2. State: Between 6 and 12 E. Voting 1. Federal: Must be unanimous either either for guilt guilt or acquittal –  acquittal –  Rule  Rule 31 2. States: can be less than unanimous i. 10-2 is ok (plurality) ii. 9-3 probably ok (pre-incorporation decision) a. court says the concept of reasonable doubt is ―jury wide.‖ Not individual.  Supreme Court has said, however, that onl y requiring 5 of 6 for a guilty verdict verd ict is insufficient. That crosses the line. If you you have six, then you must be unanimous. F. Waiver: Can waive, but most people do not. 1. Rule 23a: If the  is entitled to a jury trial, the trial must be by jury unless i. the  waives a jury trial in writing; ii. the government consents; and iii. the court approves. G. Selection Process: 1. All eligible jurors (voters, maybe drivers license) i. Court has said that it is rational to rely just on vo ter lists because it shows some interest in civic duty 2. % goes on ―Jury Wheel‖ i. Master wheel ii. Qualified wheel 3. 30-100 in Jury Pool called to court 4. voir dire –  dire –  process  process of elimination i. not qualified, hardship ii. challenges for cause iii.  peremptory challenges a. I get to excuse them because I say so H. Voir Dire Challenges 1. Questioning by the judge i. Enormous discretion vested in the judge for condu cting voir dire (abuse of discretion) a. One time where it might work is when there is pretrial publicity ii. Sometimes have to ask about race a. When race is ―inextricably bound‖ to the facts of the case  But, not all interracial crime  b. Must ask about race on request in capital case 2. Challenges for cause i. Enormous discretion vested in the judge (abuse of discretion) a. e.g. if judge accepts or denies reason given by counsel, tough to overturn that decision. ii. to challenge judge‘s decision, counsel must show actual evidence of bias a. e.g. crime victim lies; says he/she was not a victim but was; lied to get on the jury.  However, even a person seeking a job in the P was not sufficient; did not show actual  bias. Need to show that the juror would be unlikely to follow the law and the o instructions given to him/her . iii. Witherspoon: Capital a. Often called ―Witherspoon ―Witherspoon excludables.‖  People who say they would convict but would never employ the death penalty. o SCOTUS said someone who refuses to follow the law is grounds for excusing for cause. II. Batson v. Kentucky: Equal Protection Challenge 23

A. Rule: ―The EPC forbids the prosecutor to to challenge potential challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the state‘s case a gainst a black defendant.‖ B. Rule: How to proceed on a Batson Challenge: 1. Step 1 i.  must show he is a member of cognizable racial group and  used peremptories to remove members of that group a. Johnson v. California –  California – doesn‘t doesn‘t take much ii.  entitled to rely on fact that peremptories allow P to discriminate against blacks if he/she wants to a. P can‘t argue ―acting in good faith.‖ iii. Any other circumstances/evidence to show P‘s discriminatory motive a. Johnson v. California: California: doesn‘t take much to satisfy satisfy this step; judge just has to draw inference of discrimination. If court finds  made prima facie case, move to next step  2. Step 2 i. Burden shifts to P to explain peremptories; give race-neutral reasons a. Most plausible explanations, if believed, will satisfy‘s P‘s duty of race-neutral race-neutral reasons  b. Judge has great discretion  Does not have to rise to the level of a challenge for cause  Does not have to be persuasive; p ersuasive; just has to be race-neutral P. 1311 –  1311 –  Purkett   Purkett v. Elem: wild hair and a beard. Just permitted permitted it. o a. Court should focus on the genuineness the genuineness,, not reasonableness. reasonableness.  Could argue that in step 3 it was a pre-text. c. May have a discriminatory effect, but cannot have discriminatory purpose. Can even strike b/c of the language situation and an interpreter.  3. Burden shifts back to  to show pretext i. Burden always stays with  to show intentional discrimination (EP violation). a. Want to be able to say sa y ―struck that juror but did not strike another juror with the same characteristic!‖ C. Evolution of Batson: 1. JEB v. Alabama: Gender i. Rule: Cannot strike on the basis basis of gender. a. O‘Conner‘s concurrence: ―That the Court will not tolerate tolerate prosecutor‘s  prosecutor‘s racially discriminatory use of the peremptory challenge, in effect, is a special rule of relevance, a statement about what this Nation stands for, rather than a statement of fact. ii. Rule: Even if one can prove a stereotype, stereotype, it is legally irrelevant . 2. Powers v. Ohio: Rule: White defendant has standing to raise a Batson claim for the Batson right applies to both the defendant and to the prospective jurors. 3. Georgia v. McCollum: Rule: State can raise can raise a Batson claim. i. There is state action because it takes place in a courtroom, and jurors are the ones who get to raise it. 4. Rivera v. Illinois: Rule: Peremptories are not themselves of constitutional status. As such, the erroneous denial of a peremptory challenge does do es not lead to an automatic reversal. i. Leipold: The defendant need not be the same race as the struck juror. ii. Leipold: Not limited to criminal cases. Assignment Fifteen: Fifteen: Influences on the Jury –  Jury –  Pages  Pages 1378-99; Rules 29.1, 31 I. Darden v. Wainright: Improper Commentary in Closings 24

A. Rule: When asking whether a prosecutor has improperly argued, must ask whether the commentary ―so infected the trial with unfairness as to make the resulting conviction a denial of due process‖? 1. Very difficult standard to overcome 2. Factors for a court to consider: i. Did P misstate law or evidence? ii. Did argument burden right to remain silent or 4A right to have evidence excluded? iii. Were P‘s comments in response to ‘s comments? a. Just b/c the  makes an improper statement does not n ot permit the P to do so as well, but it does make it more likely that it will be found harmless. iv. How pervasive were the comments? v. Did trial court give curative jury instructions? vi. Did defense counsel object? vii. Strength of the other evidence? (big) II. In closings, the following are unacceptable: 1. attempt to just inflame the jury 2.  personal opinions i. one reason is that juries will think the P knows more than they heard. 3. Introduction of issues unrelated to guilt i. E.g. dept of corrs at fault 4. Reference to excluded evidence 5. Misstating the law or the facts III. Taking the case from the jury A.  No directed verdict from P B. Judgment of acquittal 1. At close of P case, at close clo se of whole case, or after verdict 2. Was evidence insufficient to sustain conviction? 3. If judge grants JoA before verdict, case over. i.  No appeal, nothing 4. If judge grants JoA after verdict, P can appeal IV. Jury Deliberations A. Deadlocked juries 1. Sending the jury back 2. Inquiring about numerical split i. In fed system, judge cannot  ask a. Fear is that it would be coercive co ercive to those who are in the minority ii. In states, some can ask 3. Allen ( Dynamite)  Dynamite) charges: i. Each juror . . . should examine ex amine the question submitted . . . with a proper regard and deference to the opinions of each other . . . and should listen, with a disposition to be convinced, to each other‘s arguments arguments . . . and consider whether that juror has reached the proper result. a. Judge must be very careful not to step over the line 4. If no result, mistrial  occurs i. Government may retry the case. B. Inconsistent verdicts 1. Permissible; no challenge allowed. i. Tolerated because of the possibility of jury nullification C. Impeaching the verdict 1. May poll the jury 2. Fed R. Evidence: 606(b): not going to hear about what went on 25

i.

A juror may not testify as to any matter or statement occurring during . . . deliberations, or about the effect of anything on the jurors‘ minds . . . EXCEPT a. That a juror may testify on whether extraneous p rejudicial information was improperly  brought to jury‘s attention, or, whether any outside influence improperly brought to bear on the jury. i.e. if it is an EXTERNAL influence, can discuss  Internal, not going to impeach the verdict  Can‘t even make the argument! Not that it is okay that that they are, e.g., drinking. You o  just can‘t discuss it.

Appeals Assignment Sixteen: Appellate Review and Harmless Error –  Error –  Pages  Pages 1565-81; Rule 52 I. Chapman v. California: Constitutional Errors A. Rule: In order for a court to find a constitutional error error harmless, it must find that the error error was ―harmless beyond a reasonable doubt.‖ 1. Arizona v. Fulminate: Fulminate: Rehnquist notes that the Court has ―recognized that most constitutional errors can be harmless.‖ II. Error doctrine A. First ask whether it was a structural error. 1. ―Structural‖ errors: errors: Automatically harmful error. i. Denial of lawyer, bad reasonable doubt instruction, biased judge B. If it is a ―Trial‖ error, then ask whether it was constitutional or non-constitutional. non-constitutional. 1.  Non-Constitutional Error: i. Standard: Did the error have a ―substantial and injurious effect or influence in determining jury‘s verdict.‖ a.  must show that the error ―seriously affected fairness, integrity or public reputation of  proceedings.‖ Burden of proving error: on    Burden on proving error is harmless: harmless: P P demonstrates harmless harmless by the rest of the evidence was enough. How important o was it? How much did it it influence the the jury? 2. Constitutional Errors: Chapman. C.  Note: Some errors have harm built into them. 1. E.g. Brady, Strickland, failure to sever

26