Outline Crim Pro Greenberg 2019 PDF

Preview

Summary

Download Outline Crim Pro Greenberg 2019 PDF

Description

CRIMINAL PROCEDURE: ADJUDICATION Judge Ethan Greenberg Text: Allen, Stuntz, Hoffman & Livingston, COMPREHENSIVE CRIMINAL PROCEDURE

I.

Due Process and Criminal Procedure a. “No person shall … be deprived of life, liberty, or property, without due process of law.” (U.S. Const. Amend. V) b. “Nor shall any state deprive any person of life, liberty, or property, without due process of law.” (U.S. Const. Amend. XIV) c. Examples of Due Process violations: i. Mob-dominated trial (Moore v. Dempsey) ii. State counsel appointed on the morning of trial (Powell v. Alabama) iii. Intentional exclusion of blacks from the jury (Norris v. Alabama) iv. Admitting as evidence a confession extracted by torture (Brown v. Mississippi) v. Criminalization of private sexual conduct between consenting adults (Lawrence v. Texas) d. Selective Incorporation: right to public trial, right against unreasonable searches and seizures and exclusionary rule, right to counsel, prohibition against cruel and unusual punishments, right against self-incrimination, right to a speedy trial, right to a jury trial, right to compulsory process for defense witnesses, prohibition against double jeopardy e. *Duncan v. Louisiana: Incorporation of jury trial right for crimes punishable by 6 months or more. i. A crime that is punishable by a prison term of six months or greater requires a jury trial. ii. The right to a jury trial is a fundamental right guaranteed by the Fourteenth Amendment’s due process clause and thus applies to state prosecutions. f. *Pate v. Robinson: Residual due process guarantee prohibits trial of defendant while incompetent i. Due Process requires that a defendant must be competent to stand trial. ii. The standard of competence is that the defendant have actual understanding of the proceedings against him and have sufficient ability to consult with his lawyer with a reasonable degree of rational understanding. g. Burden of Proof for Showing Competency: Preponderance of Evidence. A procedure which required defendant to prove incompetence by a preponderance of evidence did not offend Due Process (Medina v. California). h. On the other hand, a procedure which required defendant to rebut presumption of competence by clear and convincing evidence violates Due Process (Cooper v. Oklahoma). i. Unincorporated Rights: grand jury indictment, excessive bail i. States may proceed either by grand jury indictment or by information. There is no constitutional requirement that a state must proceed by grand jury indictment. The grand jury requirement of Amendment VI has not been incorporated through due process. (Hurtado v. CA)

II.

The Screening and Charging Process: Prosecutorial Discretion a. Courts do not have the power to direct the exercise of discretion by an officer or agency, or to overturn the discretionary decisions of prosecuting authorities not to prosecute persons, even persons about whom a criminal complaint was made. (Inmates of Attica v. Rockefeller (2d Cir.)) b. Equal Protection: Equal protection claims require a showing of both: (1) discriminatory intent; and (2) discriminatory effect.

i. Relief is denied where the defense fails to show a conscious, deliberate bias by officials associated with a case. ii. E.g. Statistical evidence of a profound racial disparity in the application of the death penalty is insufficient to invalidate a death sentence (McKlesky v. Kemp) c. Selective Prosecution: Although selective prosecution based on a discriminatory motive is unconstitutional, such claims require substantial proof that is difficult to obtain, absent direct prosecutorial admissions. i. E.g. Blacks prosecuted for drug offenses failed to satisfy a threshold showing for a selective prosecution claim, by failing to show that the government had declined to prosecute others similarly situated. (United States v. Armstrong) ii. In general, pretextual prosecutions are permissible as long as the charges are objectively supported. iii. A decision to prosecute select defendants based on self-reporting is permissible. (Wayte v. U.S.) d. The Fifth Amendment privilege against self-incrimination confers a right to remain silent, but it does not include a right to lie about guilt or innocence. The word “no” is a statement like any other, and the government may prosecute a defendant for making a false statement of innocence (Brogan v. U.S.) III.

The Screening and Charging Process: Grand Jury a. *Costello v. U.S. Rules of Evidence for Grand Jury i. The Fifth Amendment does not prescribe the forms of evidence upon which a grand jury may indict. ii. The federal rules of evidence do not necessarily apply to a grand jury proceeding. iii. A grand jury may even indict a defendant based solely on hearsay evidence. iv. (Also, exclusionary rules for illegally obtained evidence do not apply for grand jury proceedings. The only rule of evidence that does apply is evidentiary privilege.) b. *United States v. Williams: Exculpatory Evidence before the Grand Jury i. An indictment remains valid even if the prosecution fails to disclose substantial exculpatory evidence to the grand jury. ii. Federal courts have only limited supervisory authority over grand juries, and cannot fashion rules of procedure. iii. (The Department of Justice now does require its federal prosecutors to submit substantial exculpatory evidence.) c. New York Grand Jury: stronger safeguards for defendants than elsewhere i. New York State grants defendants a statutory right to testify before the grand jury (and dismissal of indictment as remedy for violation of right). ii. In New York, the defendant may request that the grand jury call additional witnesses. iii. Upon a motion, the grand jury minutes can be reviewed by a judge for sufficiency of evidence, to ensure that all of the charges are substantiated. iv. Defendants have a right to be accompanied by defense counsel during proceedings, but counsel is not allowed to examine witnesses or raise objections. v. The rules of evidence do apply in NY grand jury proceedings, but they are relaxed to some degree. vi. Unfair conduct by the district attorney in role as judge of evidence at hearing may be the basis for dismissing an indictment. vii. NY 180-80 rule: The government must show probable cause within six days of an arrest, either through indictment or through preliminary hearing.

IV.

Right to the Assistance of Counsel

a. “In all criminal prosecutions, the accused shall enjoy the right … to have the assistance of counsel for his defence.” (U.S. Const. Amend. VI) b. *Gideon v. Wainwright: Appointed Counsel for Indigent Defendants i. The Sixth Amendment right to counsel requires that the government appoint counsel for an indigent defendant. ii. The court overturned the old ‘special circumstances’ test from Betts v. Brady and expanded the right to appointed counsel from Powell v. Alabama to non-capital felonies. c. *Argersinger v. Hamlin: Right to Counsel where Defendant Receives Actual Jail Time i. In all trials involving potential jail time, states are obligated to appoint counsel, regardless of whether the crime is classified as petty, misdemeanor, or felony. ii. The Court refused to extend the 6-month rule from Duncan v. LA which applies to the right to jury trial. iii. On the other hand, there is no right to counsel where a jail sentence is merely authorized but not imposed. (Scott v. Illinois) d. *Nichols v. United States: Uncounseled Convictions for Sentence Enhancement i. The defendant Nichols had a prior misdemeanor DUI conviction, which the court used to impose the maximum sentence for felony cocaine possession. ii. An uncounseled prior conviction may be used to enhance a sentence for a later imprisonment. e. Right to Counsel when Suspended Sentence Imposed: Even proceedings that do not result in an immediate, actual imprisonment trigger an indigent defendant’s right to state-appointed counsel under the Sixth Amendment. A suspended sentence that may result in incarceration may not be imposed unless the defendant was given counsel at trial. (Alabama v. Shelton) f. Right to Counsel for Discretionary Appeals: Due Process does not require that a state, after appointing counsel for a defendant’s first appeal at an intermediate appellate court, must also appoint counsel for defendant’s subsequent discretionary appeals to the highest state court or to the Supreme Court. (Ross v. Moffitt) V.

Bail a. “Excessive bail shall not be required.” (U.S. Const. Amend. VIII): remains unincorporated b. Overall test: determine likelihood that defendant will appear at trial. c. Typical Bail Factors: i. seriousness of crime, ii. extent of criminal record, iii. strength of case, iv. personal background and ties to the community, v. prior failures to appear, and vi. [in some states] potential danger to the community d. Bail set at a figure higher than an amount reasonably calculated to assure the appearance of the accused is excessive under the Eighth Amendment. If bail in an amount higher than that usually fixed for serious charges is required, then that evidence must focus on the characteristics of the accused. (Stack v. Boyle) e. The right to counsel applies at preliminary hearings. (Coleman v. U.S.) f. The right to counsel does not apply at probable cause hearings, where most bail determinations are made (Gerstein v. Pugh). g. *United States v. Salerno: Denial of Bail for Protection of Community i. The Court upheld the constitutionality of the Bail Reform Act, which permitted federal courts to detain an arrestee prior to trial if the government could prove that the individual was potentially dangerous to the community. ii. The government has a compelling interest in the safety of its people.

iii. The Bail Reform Act permits the government to retain an arrestee pending trial if it can demonstrate by clear and convincing evidence at an adversary hearing that no release conditions reasonably will assure the safety of another person or the community. iv. [In New York, courts are not supposed to consider danger to the community as a factor in making a bail determination. However, judges are sensitive to political pressure and public appearances.] VI.

Speedy Trial a. “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.” (U.S. Const. Amend. VI) b. *Barker v. Wingo: Factors in Speedy Trial Determination i. There is no particular time limit to determine whether a defendant’s right to a speedy trial has been violated. ii. Instead, courts evaluate speedy trial claims on a case-by-case basis, looking at the conduct of both parties for the following factors: 1. the defendant’s assertion of the right; 2. prejudice to the defendant caused by the delay; 3. the length of the delay; and 4. the reason for the delay. c. Preindictment Delay is mostly irrelevant. i. The delay between the commission of an offense and the initiation of prosecution does not deprive defendant of due process, even if his defense might have been prejudiced by the lapse in time. (United States v. Lovasco) d. Postindictment Pre-Arrest Delay might be relevant. i. An extraordinarily long delay between indictment and arrest will create a presumption of prejudice. ii. For instance, an 8 ½ year laps between indictment and arrest violates a defendant’s right to a speedy trial, where the government had been negligent in pursuing the defendant. (Doggett v. United States)

VII.

Discovery and Disclosure a. Typical Government Disclosure Statute: Fed. R. Crim. P. Rule 16 i. oral statements made by the defendant to any government agent, and written statements by the defendant to any party ii. record of defendant’s criminal history iii. documents, objects, exhibits that the government will offer, including items taken from the defendant and items material to preparing a defense iv. reports or examinations that the government plans to use or is material to the defense b. *Brady v. Maryland: Constitutional Disclosure Obligation i. Withholding evidence that is favorable to the defense and material to either guilt or punishment is a violation of due process. ii. Brady material includes statements of witnesses, physical evidence, and impeachment evidence. iii. [Also, any agreement by a material witness with the prosecution for a more lenient sentence must be disclosed.] c. *Kyles v. Whitley: Brady Materiality: Reasonable Probability of a Different Outcome i. A prosecutor has an affirmative duty to disclose evidence favorable to the defendant. ii. Brady material includes evidence that would create a reasonable probability of a different outcome. iii. Reviewing courts must look at all of the evidence in record, and not simply conduct a sufficiency of evidence review. [There is no separate harmless error review.]

d. Even evidence relating to the credibility of key witnesses is not automatically Brady material. The reasonable probability prong of Brady materiality is not the same as a bare possibility. (Strickler v. Greene) e. The Brady disclosure requirement applies to the trial stage, not to the plea bargaining stage. (U.S. v. Ruiz) f. *Williams v. Florida: Defense Disclosure of Alibi Witnesses i. The Fifth Amendment privilege against self-incrimination is not violated by a statute that requires pretrial notice of the names and addresses of alibi witnesses. ii. The Court relied on an accelerated disclosure theory. iii. (Williams v. FL also holds: the Sixth Amendment does not require a 12-man jury, and a 6-man jury for noncapital cases is sufficient.) g. Exclusion of Surprise Witnesses i. The Sixth Amendment does not create an absolute bar against preclusion of testimony by surprise witnesses. Exclusion is justified where the omission was willful and motivated by a desire to obtain a tactical advantage, to minimize effectiveness of cross-examination, and to advance rebuttal evidence. (Taylor v. Illinois) VIII. Guilty Pleas and Plea Bargaining a. *Boykin v. Alabama: Knowing and Voluntary Plea i. A guilty plea is not valid unless there is an affirmative showing that it was made knowingly and voluntarily. ii. It is plain error to accept a plea where the judge asks no questions and the defendant does not address the court. iii. [Rule 11 of Fed. R. Crim. P. provides more extensive plea colloquy than state practice.] b. The defendant who pleads guilty is not required to understand subjectively the full range of potential defenses. A guilty plea and ensuing conviction comprehends all of the necessary elements to sustain a binding, final judgment of guilt and lawful sentence. A counseled plea that is free and voluntary precludes collateral attack. (United States v. Broce) c. There are no constitutional barriers in place to prevent a judge from accepting a guilty plea from a defendant who wants to plead guilty but who still protests his innocence. (North Carolina v. Alford) i. [Alford also holds: the threat of the death penalty does not render a plea involuntary.] d. Enormous sentencing discounts and the threat of the death penalty is not sufficient evidence of coercion. As long as the defendant enters his plea with full knowledge and willingness, there is no offense to due process. (Brady v. United States) e. Bordenkircher v. Hayes: Prosecutorial Threats During Plea Negotiations i. Due process is not offended when a prosecutor carries out a threat during plea negotiations to reindict the accused for a more serious charge, as long as the actual charges are objectively supported by the evidence in the prosecutor’s possession. f. *United State v. Pollard (D.C. Cir.): Plea Wiring i. It is not unconstitutional for a prosecutor to “wire” a defendant’s guilty plea to the plea of a third-party defendant, as long as the actual plea is knowing and voluntary and as long as there is a factual basis for the prosecutor’s threat or promise. g. Release-Dismissal Agreements i. There is no per se rule invalidating release-dismissal agreements. Such agreements do not pose a more coercive choice than other situations involving the waiver of constitutional rights. (Town of Newton v. Rumery) h. Waiver of Evidence Rules for Plea Negotiations i. Absent some affirmative indication that a waiver agreement was entered involuntarily or unknowingly, an agreement to waive the exclusionary provisions of plea-statement rules is valid and enforceable. (U.S. v. Mezzanatto)

i. *Santobello v. New York: Plea Agreements as Contracts i. When a plea rests on a promise or agreement from a prosecutor, such promise must be fulfilled. ii. The defendant’s sentence must be vacated where a plea agreement specified that a prosecutor would not recommend a sentence, and then the prosecutor breached the agreement by recommending the maximum. iii. [On the other hand, acceptance of a plea bargain does not create a constitutional right to have the bargain specifically enforced.] (Mabry v. Johnson) IX.

Jury Trial a. “In all criminal trials, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed.” (U.S. Const. Amend. VI) b. *Duncan v. Louisiana: Incorporation of Jury trial right for crimes punishable by 6 months or more. i. A crime that is punishable by a prison term of six months or greater requires a jury trial. ii. The right to a jury trial is a fundamental right guaranteed by the Fourteenth Amendment’s due process clause and thus applies to state prosecutions. iii. [But a defendant charged with multiple offenses together adding up to greater than six months is not entitled to a jury.] c. *Ballew v. Georgia: Six-Member Minimum for Juries i. A criminal conviction by a five-member jury is unconstitutional under the Sixth Amendment. ii. The minimum size of a jury for a petty offense is six persons. iii. Williams v. Florida previously upheld a six member jury. d. *Johnson v. Louisiana: Juror Unanimity i. A conviction by a jury vote of nine to three does not violate the reasonable doubt standard embodied in due process. ii. Allowing a less-than-unanimous verdict serves a rational state purpose. iii. On the other hand, unanimity is required for capital cases and for six-member juries. iv. [Federal verdicts must be unanimous.] e. Voir Dire and Jury Selection i. In death penalty cases, it is always permissible to question jurors about racial attitudes. (Fickum v. SC) ii. Death penalty qualification questions do not violate the fair-cross section requirement, even though doing so increases chances of conviction. (Lockhart v. McCree) iii. Jurors do not have to satisfy the court that they have been insulated from all pretrial publicity, but only that they can discharge their civic responsibilities adequately. (Mu’min v. Virginia) iv. Systematic exclusion of women from jury service violates a defendant’s right to a jury trial, regardless of whether the defendant is a member of the group. (Taylor v. Louisiana) 1. On the other hand, there is no requirement that the actual petit jury represent the community’s demographics, only that the pool of prospective jurors be representative. f. Duren v. Missouri: Fair-Cross Section Requirement i. The Sixth Amendment right to a jury trial guarantees that the jury pool be made up of a fair-cross section of the community. ii. A systematic exclusion of a distinctive group in the community violates this requirement. iii. (Only gender and race are considered distinctive for such purposes.) iv. A Missouri statute which exempts women from jury service and results in only 15%

female jurors violates this right. g. Batson v. Kentucky: Equal Protection in Jury Selection i. Prosecutors may not abuse peremptory challenges by striking jurors based on race. To show a Batson violation, the defense must: 1. make a prima facie showing that the prosecutor is using peremptories to exclude members based on race; 2. the prosecutor has a burden to proffer a neutral explanation for the challenges; 3. the judge makes the ultimate finding of whether a violation has occurred. ii. The Court overruled the old rule of Swain v. Alabama, which required a defendant to show a systematic striking of black jurors throughout the county. iii. Batson originally required the defendant to show that he was a member...