criminal procedure class ten. today’s topics: bail n tensions n constitutional basis n mechanics n...
TRANSCRIPT
Today’s Topics: Bail
Tensions Constitutional Basis Mechanics Federal Act Miscellaneous Issues
– Capital Murder– Juveniles– Post-Conviction
Today’s Topics: Discovery
Issues D’s Discovery Mechanics Constitutional Duty Preservation of Evidence Prosecutor’s Discovery
Initial Considerations
Suspect/Defendant View– Query: What “costs” are associated with
pretrial detention?– Query: How might pretrial imprisonment
prejudice merits of D’s case? Government/Society View
– Query: What are the chief interests of State?
Constitutional Basis
Article I, Section 9– Gives person in custody right to seek writ of
habeas corpus– “The privilege of the Writ of Habeas Corpus
shall not be suspended, unless when in Cases of Rebellion or Invasion the pubic Safety may require it”
Congressional Power to Limit Bail Carlson v. Landon
– Civil action– Denial bail to alien communists awaiting
deportation hearings Rationale: 8th Amd prohibits excessive bail
but does not require bail
State Constitutional Provisions
Many states, including Texas, have added a bail requirement to the State Constitution
Texas Constitution, Article I, Sections 11 and 11(a)– Even where Texas Constitution provides that
bail can be denied, D.A. must do something to trigger
Mechanics: Delivery Methods
10% Plan– D pays directly to Court– Often “assignable”
Personal Bond– “Personal recognizance”
Bondsmen
Important role in determining which defendants are released and which remain incarcerated
Uniquely American Private citizens Traditionally broad discretion to establish
collateral and to retrieve clients
Exercise: Private Bail Bondsmen
Identify a minimum of 3 arguments supporting a private bonding system
Identify a minimum of 3 arguments against a private bonding system
Setting Bail
Schedules Significant Factors
– Seriousness of offense– Strength of prosecutor’s case– Defendant’s prior criminal record
Federal Act: 1966
Purpose: Encourage federal courts to release people without requiring them to go through bail bondsmen
Focus: What amount would reasonably assure trial appearance?
Federal Act: 1966
Missing Element: Did not permit D to be confined pending trial because of perceived risk of general danger to community
Federal Act: 1984
Preference: Release on personal recognizance
Recognizes: Danger to community as factor
Federal Act: 1984
Procedure: Hearing at which judicial officer may determine if any conditions can adequately protect against bail flight risk and community danger
Rebuttable Presumptions: Certain offenses and certain offenders --- no conditions adequate to warrant pretrial release
Conditions: Judge can add least restrictive means necessary
Constitutionality of Federal Bail Reform Act Issue: Is “preventive detention” prior to
trial constitutional?– Due process violation?– 8th Amd violation?
United States v. Salerno
Other Types of Preventive Detention Confinement in mental institution following
verdict of “not guilty by reason of insanity” Civil commitment of sex offender following
discharge of criminal punishment
Miscellaneous Issues
Capital Offenses– Long standing rule that permissible to deny
where proof gives rise to strong presumption of guilt
– Practice Tip: Defense attorney may still want to pursue bail hearing even if release unlikely. Why?
Miscellaneous Issues
Post-Conviction Bail– No constitutional right to bail or release
pending appeal– Federal Bail Reform Act of 1984 frowns on
release– Texas more liberal than federal system, but
limits by punishment assessed and type of crime
General Concepts
No general right to discovery in criminal cases– Much more limited than typical civil case
General Concepts
Role of 5th Amd in prosecution’s right to discovery
Limits on D’s right to discovery primarily result of Rules of Procedure, not constitutional limitations
Issues and Tensions
Arguments against discovery by D– Gov’t should not have to share information
when D cannot be compelled to do same– Likely to endanger witnesses– Places D in better position to commit perjury– Promotes fishing expeditions
Issues and Tensions
Arguments favoring discovery by D– Promotes guilty pleas– Best protection against manipulation = early
exposure of facts and enforcement of ethical rules
Issues and Tensions
ABA Position: Administrative advantages– Expeditious resolution– Reduces motions– Minimizes inequities among similarly situated
Ds– Reduces collateral attacks
D’s Discovery: Basics
Extent to which discovery as matter of right exists depends on local law
Judge discretion to order enlarged discovery varies by jurisdiction
Prosecutor discretion– Open file policy– “Discovery by Grace”
Application Exercise: Federal Rule 16 Query: To which of the following items is
D entitled to discovery under Federal Rules?
Application Exercise: Federal Rule 16 Grand Jury Transcript
– Defendant’s own statement– Witness statement after direct testimony at trial– Anything exculpatory
Application Exercise: Federal Rule 16 D’s Statements?
– D’s oral statements to undercover agents? Non government agents?
Application Exercise: Federal Rule 16 Autopsy Reports? Other Forensic Reports?
– Medical?– Psychiatric?– Blood tests?– Handwriting or fingerprinting comparisons?
Constitutional Duty
Exists independently of obligations imposed by discovery rules
Informed by due process clause [5th Amd] Types of evidence impacted
– Exculpatory information [Brady rule]– False evidence
Continuing duty
Preliminary Exercise
Facts: You are the prosecutor in the Sally Vee aggravated sexual assault case against Johnny Dee. Her claim is that she was raped, at knifepoint, inside of her apartment by a stranger she later identified in a lineup. D has consistently asserted his innocence, offering investigating officers an alibi defense. Court-appointed defense counsel has filed a Motion for Discovery seeking “anything exculpatory” in your files.
Preliminary Exercise
Houston Police Department lab report on knife found at scene. Results: Inconclusive match with D’s fingerprints.
– Variation One: Investigating officer testifies that various scientific tests were performed and D was linked to scene.
– Variation Two: Prints come back to Bobby Saltzburg.– Variation Three: Prints come back to Bobby but you
were never told that by police.– Variation Four: Sally’s identification of D was tentative
at first, and “positive” only after a suggestive one-on-one show up in court.
Preliminary Exercise
Confession to offense by Crazy Will, a man who routinely confesses to sexual crimes. You do not believe the confession. Police tend to dismiss Willie as a crank.
Preliminary Exercise
Sally Vee’s “rap sheet” indicating that she has had several arrest warrants for hot checks, which each time she cleared up by paying her creditors.
Preliminary Exercise
Fact that underwear worn by Sally Vee at time of offense was misplaced somewhere in hospital emergency room.
Preliminary Exercise
Fact that Sally Vee volunteered to take a polygraph test, the results of which were inconclusive, with the examiner stating his personal opinion that she may have been lying on the questions of consent and prior relationship.
Prosecutor’s Constitutional Duty to Disclose: Recap False Evidence: Due process violated if gov’t
engages in deliberate deception by presenting testimony known to be perjured– Mooney v. Holohan– Alcorta v. Texas– Napue v. Illinois
Brady Rule: Due process violated if gov’t withholds evidence would would tend to exculpate D or reduce punishment– Brady itself required demand; later modified
Prosecutor’s Constitutional Duty to Disclose: Recap Determining “materiality”: Material only if
there is a reasonable probability that, had the evidence been disclosed, result of proceeding would have been different.– Probability sufficient to undermine confidence
in outcome– United States v. Agurs– United States v. Bagley
Observations from Kyles (1995)
To meet burden, D does not have to show by preponderance that disclosure would have meant acquittal
Do not confuse with sufficiency test No harmless error analysis [Bagley
materiality substitutes] Consider “big picture” of trial rather than
piecemeal
Application to Guilty Pleas
Issues: Does Brady apply to guilty pleas? If so, what is the test for materiality?
Application to Guilty Pleas
United States v. Ruiz (2002) [Supplement]– Impeachment– Information bearing on affirmative defense– Fairness of trial vs. voluntariness of plea
Preservation of Evidence
Issue: What duty does gov’t have to keep evidence? Is D denied due process when evidence is destroyed and he looses opportunity for independent analysis?
Preservation of Evidence
California v. Trombetta Arizona v. Youngblood
– Presumption destroyed evidence is exculpatory if destruction done in bad faith
Discovery by Prosecution
Concept: Is it constitutionally permissible to require D to provide material to gov’t?
Discovery by Prosecution
Constitutional provisions implicated– 5th Amd: self-incrimination– 5th Amd: due process [fundamental fairness]
Discovery by Prosecution
Williams v. Florida– Advance notice of intent to claim alibi– Due process analysis– Self-incrimination analysis
Discovery by Prosecution
General Discovery– ABA Standards– Illustrative State examples– Texas: insanity; experts
Discovery by Prosecution
Remedies– Taylor v. Illinois [exclusion of defense witness]– Ethical implications