crimpro_adjud_outline.doc

7/27/2019 CrimPro_Adjud_Outline.doc

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The Right to Counsel at Trial and on Appeal

I. Introduction: Importance of defense Lawyers in Adversary SystemA. Role of a defense lawyer at criminal trial

a. To reduce wrongful convictions of innocent people

b. Ensure that guilty receive due processc. Serve as equalizers in confrontation between the govt, which hires it own

lawyers to prosecute, and the person charged

B. W/out a lawyer the defendant faces the danger of conviction b/c he does not knowhow to establish his innocence

II. The Right to Counsel at TrialA. The Right to Employ Counsel

a. 6th Amendment entitles an accused in a federal prosecution to employ alawyer to assist in defense at trial

b. Deemed a fundamental right in 1963

c. Applies to the states under the 14th Amendment

B. Indigents: The Right to Appointed Counsela. Overview

i. Goal1. Supreme Court has mandated legal assistance to indigent

criminal defendants through 6th Amendment

2. Gideon v. Wainwrightrequires states to appoint counselfor indigents

ii. The Reality

1. 2/3 federal defendants represented by court-appointed

lawyers2. Less than one penny of every govt dollar was spent on

judicial and legal services, which includes appropriationsfor courts, prosecutors, and public defense counsel3. Three forms of public defender systems

a. Public-defender systemorganization of lawyers

designated by a jurisdiction to providerepresentation to indigents in criminal cases

b. Contract-Attorney programa jurisdiction enters

into an agreement with private attorneys, law firms,

or bar associations to represent indigents in thecommunity

c. Assigned-Counsel programmany lawyers are

placed on a list to provide representation to poordefendants on a case-by-case basis

b. The Road to Gideon

i. Powell v. Alabamain a capital case, where the is unable toemploy counsel, and is incapable adequately of making his own

defense b/c of ignorance, feeble mindedness, illiteracy, or the like,

it is the duty of the court, whether requested or not, to assign

counsel for him as a necessary requisite of due process of law


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ii. Betts v. Bradyrejected the principle that due process of law

demands that in every criminal case, whatever the circumstances, a

state must furnish counsel to an indigent c. Gideon v. Wainwrightoverruled Betts and brought the protections of the

6th Amendment right to counsel to the states, through 14th Amendment

due processd. Post-Gideon Law: Misdemeanor Cases

i. Argersinger v. Hamlinabsent a knowing and intelligent waiver,

no person may be imprisoned for any offense, whether classified aspetty, misdemeanor, or felony, unless he was represented by

counsel at his trial

ii. Scott v. IllinoisConstitution only requires that no indigent

criminal defendant be sentenced to a term of imprisonment unlessthe state has afforded him the right to assistance of appointed

counsel in his defense

III. The Right to Counsel: On Appeal

A. Inapplicability of the 6th Amendmenta. By its language the 6th Amendment does not apply to appeals

b. Appellate procedures are still subject to 14th Amendment EP and DPc. Griffin v. Illinoisa state that requires a to furnish trial transcript to the

appellate court as a condition of hearing s appeal must provide the

transcript at state expense for indigentsB. First Appeal

a. In General

i. Convicted has no constitutional right to appeal conviction at all

ii. Every state provides at least one appeal of right howeveriii. Douglas v. California14th Amendment requires a state to

provide counsel for an indigent for first statutory appeal of right

C. Subsequent Discretionary Appealsa. 14th Amendment does not require appointment of counsel to assist

indigent appellants in discretionary state appeals and for review in U.S.

S.Ctb. Has also extend this ruling to state habeas corpus proceedings

c. Indigents on discretionary appeals have an adequate opportunity to present

their claims without the assistance of counsel

IV. The Right of Self-Representation

A. Faretta v. California

a. Recognition of the Right

i. has a constitutional right voluntarily and knowingly to waive hisright to the assistance of counsel and to represent herself at trial

ii. It is the not counsel, who must be informed of the nature of the

charges, who has the right to confront accusers, and who must beaccorded compulsory process for obtaining witnesses

iii. The right to defend is given directly to the because he suffers the

consequences if the defense fails

b. Reflections on Faretta


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i. Defendant has a protectable right of autonomy

ii. Even if the s decision is ultimately to his own detriment, the

choice must be honored out of respect for the individualiii. There is no comparable right to self-representation on appeal

iv. States interest in criminal prosecution

1. Not that the state win the case but that justice be done2. That the legal proceeding appear fair to all who observe

them

B. Procedural Issuesa. Informing the Accused of the Right

i. Right of self-representation is independent of right to assistance of

counsel

ii. does not have to be informed of right of self-representationunless clearly indicates that she is considering the option

b. Timeliness of the Request

i. Must assert right in a timely fashion

ii. Must be made sufficiently early so that the request does not undulydelay orderly processes

c. Hybrid Representationi. Defendant is not entitled to hybrid representation

d. Standby Counsel

i. A trial court may, even over s objections, appoint standbycounsel

1. Is limited to assisting the when asks for help and to

taking over the case if self-representation must be

terminated during trial2. The right of self-representation is not violated unless

standby counsel substantially interferes with significant

tactical decisions of the , controls the questioning ofwitness, speaks in the s place against his wishes on

matters of importance, or in some other way destroys the

jurys perception that the is representing himselfe. Legal Significance of Poor Self-Representation

i. One who chooses self-representation cannot later complain that the

quality of his own defense amounted to denial of effective

assistance of counself. Legal Effect of an Erroneous Denial of the Right

i. If the court wrongfully refuses to permit the to represent himself

any subsequent conviction must be reversed

VI. Interference with Right to Counsel

A. There must be no restriction upon the function of counsel in defending a criminal

prosecutiona. The govt may not restrict defense counsels decision on whether and

when the accused will testify

b. May not prevent counsel from eliciting testimony from his client through

direct examination


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c. May not deny counsel the opportunity to make a summation to the jury

d. May not prohibit a from consulting w/ attorney during an overnight

recessB. Direct interference by the govt w/ the s right to the assistance of counsel

ordinarily requires automatic reversal of any resulting conviction

VII. Effective Assistance of Counsel: General PrinciplesA. Nature of the Issuethe fact that a person who happens to be a lawyer is present

at trial along side the accused is not enough to satisfy the 6th Amendment

defendants cannot be left to the mercies of incompetent counsela. The professional judgment of a lawyer should be exercised, within the

bounds of the law, solely for the benefit of his or her client and free of any

compromising influences and loyalties

b. A defense lawyer should interview his client early on in their relationship,keep her client informed of important developments in the case, and

consult with her client on important decisions

c. Counsel has a duty to conduct a prompt investigation of the circumstances

of the case and explore all avenues leading to facts relevant to the meritsof the case and the penalty in event of conviction, after which she must

bring to bear such skill and knowledge as will render the trial a reliableadversarial process

B. Ineffective Assistance: The Strickland Test

a. General Principlesi. Whether counsels conduct so undermined the proper functioning

of the adversarial process that the trial cannot be relied on as

having produced a just result

ii. Strickland announced a two prong testboth elements must beproved if the is to show that the conviction resulted from a

breakdown in the adversary process that renders the result

unreliableb. The First ProngDeficiency of Representation

i. The Standard

1. The errors must be so serious that counsel was notfunctioning as the counsel guaranteed by the 6th

Amendment

2. must identify with precision the acts or omissions that he

claims were constitutionally unreasonable3. Court must evaluate from the lawyers position at the time

of the act or omission, disregarding what they know of

what happened later in the trial4. Strategic decisions by a defense lawyer are virtually

unchallengeable if they were made after thorough

investigation of the law and facts relevant to the case5. Strategic decisions made after less than complete

investigation are reasonably precisely to the extent that

reasonable professional judgments support the limitations

on investigation


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ii. Deficiency: Case Law

1. Failure to perform ordinary tasksvery difficult to prove

that a counsels failure to conduct ordinary tasks indefending a client constitutes 6th Amendment deficient

representation

2. Sleeping on the Joba constitutional deficiency is shownif a proves that his lawyer frequently slept during trial or

during significant pretrial hearings

3. Ignorance of Relevant Laweasier to prove than that alawyer acted with undue vigor in his defense

c. The Second Prong: Prejudice

i. The Standard

1. The errors must be so serious as to deprive the of a fairtrial, a trial whose result is reliable

2. must show that there is a reasonable probability that, but

for counsels unprofessional errors, the result of the

proceeding would have been different3. Reasonable probability is a probability sufficient to

undermine the confidence in the outcome4. Whether counsels errors would have effected the outcome

of a reasonable decision maker

5. Prejudice is presumed in three types of casesa. Actual or constructive denial of the assistance of

counsel

b. Certain forms of state interference with counsels

assistancec. Representation by a lawyer burdened by an actual

conflict of interest

ii. Prejudice: Special Problems1. The Sleeping Lawyerhard to prove when the lawyer was

asleep and whether or not it would have changed the

outcome of the trial suffers prejudice, by presumptionor otherwise, if his counsel was repeatedly unconscious at

trial for periods of time in which the s interest were at

stake

2. The Factually Guilty a person who may have factuallycommitted an offense can prove prejudice, if she can

demonstrate that there is a reasonable probability that, but

for counsels error, his guilt would not have been proven onthe basis of legally admissible evidence

VIII. Effective Assistance of Counsel: Conflicts of Interest

A. Nature of the Issuea. is entitled to loyalty of his attorney

b. When one attorney represents multiple clients, especially co-defendants,

there is possibility that the interests of the clients will clash


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c. Joint representation is usually considered unethical if will limit ability to

represent the clients

d. A breach of ethical standards is not a per se violation of the 6thAmendment

B. Pretrial Procedures to Avoid Conflicts

a. Attorney generally makes a timely pretrial motion for appointment ofseparate counsel based on an assertion of potential conflict of interest

b. Trial judge is required to grant the motion or to take adequate steps to

ascertain whether the risk is too remote to warrant separate counselc. Failure of judge to at least conduct a hearing on the matter requires

automatic reversal of any subsequent conviction

d. Joint representation is constitutionally suspect

e. The court is not required to, sua sponte to inquire into joint-representationarrangements

C. Post-trial Proof of Conflict of Interestconvictions will not be overturned on

basis of post-trial claims of conflict of interest unless can demonstrate two

thingsa. An actual conflict of interest existed

b. The conflict adversely affected the lawyers performance (doesnt have toshow that the outcome would have been different

D. Waiver of the Right to Conflict-Free Representation

a. Co-defendants may wish to have the same attorneyb. The trial court has the authority to disqualify defense counsel if it

concludes there is a serious possibility that a conflict exists

c. A does not have unlimited authority to waive right of conflict-free

representation in order to have attorney of choiceE. Effective Assistance: The Role of Ethical Canons

a. Violation does not constitute a per se violation of 6th Amendment

b. If there has been no breach of any recognized professional duty, it followsthat there can be no deprivation of the right to assistance of counsel under

Strickland standard.


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Pretrial Release of the Defendant

I. Pretrial Release: Procedural ContextA. 1st appearance before a judicial officer is the first opportunity for to be released

B. This should occur without unnecessary delay and usually within 24 hours, except

on weekendsC. Types of release

a. On Recognizanceon the promise that he will return for the criminal

proceedingb. Bondreleased by depositing cash or property with the court, or by

posting it with a bondsman in an amount determined by the magistrate

bond is subject to forfeiture if does not appear in court

D. Preventative Detentionmagistrate can keep a in jail if determines that noconditions will reasonably assure the accuseds appearance as required or that his

release will jeopardize the safety of another person or the community as a whole

E. In federal courts a is entitled to representation by counsel appointed by the

court if indigent at the bail hearingII. Pretrial Release: Interests at Stake

A. The Communitys Interestsa. Protecting the integrity of the judicial process

b. Ensuring that those released pending trial do not commit other offenses

while they are freec. S.Ct recognizes pretrial crime prevention as a constitutionally justifiable

interest in regulating pretrial release

B. Arrestees Interests

a. Interest in libertystrong and fundamentalb. Presumption of innocence implied by due process clause and unless the

right to bail before trial is preserved, the presumption of innocence,

secured only after centuries of struggle, would lose its meaningc. Confinement can hamper the s or his counsels preparation of the trial

defense

d. Confinement can be emotionally and financially disruptive to the accusedand his family

III. Pretrial Release: Eighth Amendment

A. Traditionallythose charged with non-capital offenses had an absolute statutory

right to be admitted to bailB. Stack v. Boyleit ispermissible for a judge to condition freedom on adequate

assurance that the accused will stand trial and submit to sentence if found guilty

C. Bail set at a figure higher than an amount reasonably calculated to fulfill thispurpose is excessive under 8th Amendment

D. Fixing of bail must be based upon standards relevant to the purpose of assuring

the presence of the defendanta. Nature and circumstances of the offense charged

b. Weight of the evidence against the accused

c. Accuseds character

d. Financial ability of the to meet the bail requirements


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E. S.Ct. has never ruled that the Constitution entitles a to be released without bail

if cannot afford to meet any financial conditions

IV. Pretrial Release: Statutory Law

A. Pre-Reform

a. Pre-trial release was conditioned on a deposit of cash with the court

b. If could not make payment then contacted bail bondsman who furnishedthe payment to the court and received a nonrefundable fee of 10% of the

bond from the

c. If could not pay bondsman fee or if bondsman refused to pay thendefendant remained in jail through the trial

B. Federal Bail Reform Act of 1966

a. Announced a presumption in favor of the release of arrestees on their own

recognizanceb. Conditions for release could only be imposed if the magistrate determined

that they were necessary to reasonably assure the appearance of the

defendant at criminal proceedings

c. The law also required the magistrate to attach the least restrictivecondition or combination of conditions possible

d. Non-financial conditions were preferred to baile. If financial conditions were necessary then the preferred condition was for

defendant to deposit up to 10% with the court, rather than with a

bondsman

C. Federal Bail Reform act of 1984

a. Allowed for the first time for magistrate to consider if the release would

endanger the safety of nay other person or the community

b. The magistrate could also order pretrial detention of a defendantc. Except for the preventative detention the Act is like the last one

preferring the least restrictive conditions

d. Law expressly provides that judicial officer may not impose a financialcondition that results in the pretrial detention of the personthe intent to

prohibit the use of bail as a form of sub rosa preventative detention

V. Preventative Detention

A. Federal Bail Reform Act of 1984

a. Permits the detention of arrestees in specified circumstances

b. If, after a hearing, the magistrates determines that no condition or

combination of conditions will reasonably assure the appearance of theperson is required and the safety of any other person or the community

c. Pretrial detention has largely been substituted for bail as a means of

detaining sd. Magistrate must hold a detention hearing on motion of prosecutor if is:

i. Charged with violent crime

ii. Charged with a drug offence with max sentence of 10 yearsiii. Charged with a capital crime

iv. If the felony is committed by one previously convicted of two or

more above offenses


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v. If there is an allegation of a serious risk of flight, obstruction of

justice, or intimidation of a prospective witness or juror

e. Accused is entitled:i. To be represented by counsel

ii. To testify on own behalf

iii. To cross-examine witnesses called by the prosecutorf. Rules of Evidence do not apply

g. Magistrate must take into account

i. Nature of offense chargedii. Weight of evidence against the defendant

iii. History and characteristics of the person, including his physical

and mental condition

iv. Ties to family and communityv. Whether he was on probation, parole, or pretrial release when he

was arrested

h. The act creates two rebuttable presumptions

i. The accused is presumed to be too dangerous to be released if theprosecutor provides that the has previously been convicted of

one of the enumerated offenses that justifies a detention hearing,that the offense for which he was convicted was committed while

he was on release pending trial for another crime, and that five

years have not elapsed since the date of conviction or of releasefrom imprisonment (which ever is later) of the prior conviction

ii. There is a presumption that no conditions of release will

reasonably assure that the defendant will not flee or commit a

crime, if the magistrate determine that there is a probable cause tobelieve that, on the present occasion, he committed one of a

specified set of serious drug offenses or an offense involving the

use or possession of firearmsi. Judge must include written findings on the reasons for his decision to

order preventive detention

j. The losing side may immediately appeal the decisionB. The Policy Debate

a. Critics

i. Anticipatory confinement is contrary to presumption of innocence

ii. It is wrong to jail a person for what society fears they will do in thefuture

iii. Violates the historical belief in human free will

iv. It is unwise to use because experts lack the capacity accurately topredict future dangerousness

b. Defenders

i. It is hard to sustain the argument that the govt should never havethe power to detain a person prior to trial, regardless of the

circumstances

ii. If preventive detention is justifiable in any cases then there is no

question of whether the govt has the right to preventative


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detention just under what circumstances they should be able to use

it

iii. Detention may be justifiable if and only if there is substantialpreliminary proof that those whom society intends to detain are,

indeed dangerous individuals

C. The Constitutional Debatea. U.S. v. Salerno: The Holding

i. In this society, liberty is the norm, and detention prior to trial or

without trial is carefully limited exceptionii. The provision in the Federal Bail Reform Act is constituted to

carefully limit exceptions to the liberty norm

b. Due Process

i. Substantive

1. Although pretrial punishment is unconstitutional, not all

incarceration constitutes punishment

2. Whether preventative detention violates substantive due

process is a matter of interest-balancing3. Salerno Court created three step process for determining

whether a restriction on liberty constitutes impermissiblepunishment or permissible regulation

a. A court must look at legislative history to determine

if Congress expressly intended to impose punitiverestrictions

b. If no such intent is divined, a court must decide if

an alternative purpose to which the restriction may

rationally be connected is assignable for itc. The court decide if the restriction is excessive in

relation to the alternative purpose assigned to it

4. Other pretrial and non-trial restrictions on justice have beenjustified

a. Detentions of persons believed to be dangerous in

times of warb. Incarceration of mentally disordered persons or

danger to themselves or others

c. Detention of dangerous criminal defendants

incompetent to stand trial5. Court determined that the Act falls into this category of

justifiable pretrial detentions

ii. ProceduralCourt found that the procedures of the Act wereadequate to authorize the pretrial detention of a least some persons

charged with crimes

c. Eighth Amendment

i. Preventative detention does not go against the 8th Amendment

ii. It prohibits excessive bail but does not provide an absolute right to

bail in the first place


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Plea Bargaining and Guilty Pleas

I. Guilty Pleas: Overview

A. Procedural Contexta. Defendant may plead

i. Not guiltynot necessarily factually innocent but that prosecutor

does not have enough info to prove the caseii. Nolo Contendereliterally means I will not contest it, has same

effect as guilty plea but cannot be used as admission of guilt in

civil proceedingsiii. Guilty

iv. Not guilty by reason of insanity

v. Conditional guilty pleasprevents the defendant to appeal a

specific issue that otherwise would not have survived the pleaB. Constitutional and Policy Concerns

a. In pleading guilty a person gives up several constitutional rights

i. 5th Amendment privilege against self-incrimination

ii. 6th Amendment right to speedy trialiii. Right to a jury trial, to confront witnesses and call witness on own

behalfiv. Procedures used to obtain guilty pleas must adequately ensure that

s waive their constitutional rights voluntarily and knowingly

v. Also a question of whether the law should encourage, tolerate, oractively discourage guilty pleas

II. Validity of a Guilty

A. In General

a. Guilty Plea is not valid unless it meets constitutional safeguardsi. who pleads guilty must be represented by counsel or validly

waive that right

ii. A criminal may not plead guilty, or waive counsel in order to doso unless he is mentally competentsame as competency to stand

trialsufficient present ability to consult with attorney with

reasonable degree of rational understanding and can understand theproceedings against him

iii. A guilty plea is invalid unless the trial court satisfies itself that the

defendants waiver of her constitutional rights is voluntary and

knowingiv. A guilty plea will not be upheld, in some cases, unless a factual

basis for it exists

b. A defendant does not have a federal constitutional right to forgo a criminaltrial by pleading guilty

B. Voluntariness of the Plea

a. Due Process is violated if a trial judge accepts a coerced guilty pleab. A guilty plea is not coerced unless it was induced by threats,

misrepresentation, or perhaps by promises that are by their nature

improper as having no proper relationship to the prosecutors business


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c. S.Ct is hesitant to invalidated guilty pleas on basis of involuntariness

because a strict standard might discourage guilty pleas and the plea

bargaining process that precedes them

C. Knowing Nature of the Plea

a. In Generala guilty plea is invalid if the is unaware of:

i. The nature of the charges to which she is pleadingii. The penal consequences of the plea

iii. The nature of the rights she is waiving by pleading guilty

b. Nature of the Charges

i. Defendant must receive real notice of the true nature of the charge

against him

ii. Only applies to undefined critical elements of the crime

c. Penal Consequences of the Plea

i. must be informed of the direct consequences of his guilty plea

ii. At minimum, must be informed of possible maximum for crime

is pleading guilty to

iii. Majority view is that failure of court to inform defendant of directpenal consequences of the plea does not by itself constitute a

violation of due processiv. Due process violation occurs if the pleaders lack of correct

information prejudiced himparticularly if he would not have

pled guiltyd. Nature of the Rights Being Waived must be informed of the rights

he is waiving

e. Incorrect Legal Advice: How it Affects the Intelligence of the Plea

i. A defendant is not entitled to withdraw his plea merely because hediscovers long after the plea has been accepted that his calculus

misapprehended the quality of the states case or the likely

penalties attached to alternative courses of actionii. It is enough that the plea be based on a competent lawyers advice,

based on then possible penalties

iii. A plea will not be vacated on the ground of ineffectiverepresentation unless the proves both that her counsels

representation was constitutionally deficient, and that she was

prejudiced by the deficiency

D. Factual Basis of the Plea

a. Generally a judge is not constitutionally required to determine whether

there is a factual basis for a defendants guilty plea

b. The constitution does require a judicial determination of the factual basisfor the plea when a defendant affirmatively tells the judge that he is

innocent of the crime pleading guilty to

c. It is unlikely that the judge will be required to be convinced of adefendants guilty beyond a reasonable doubt

III. Obtaining a Valid Guilty Plea: Federal Procedures

A. Ensuring Voluntariness


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a. Trial court is required to withhold acceptance of a guilty plea until it

determines that the plea is voluntary

b. Requires the judge to determine the voluntariness by addressing the personally in open court

c. Any variance from the procedures requires that does not affect substantial

rights shall be disregardedB. Ensuring An Intelligent Plea

a. Must determine in open court a variety of matters pertaining to the nature

of the charges to which is pleading, the penal consequences of the pleaand the constitutional rights waiving

b. Judge must inform of nature of charge to which is pleading, any

mandatory minimum sentence provided by law, and the maximum penalty

for the offenseC. Determining the Factual Basis of the Plea

a. The court should not enter a judgment upon a guilty plea without making

such inquiry as shall satisfy it that there was a factual basis for the plea

b. Only applies to guilty pleasIV. Effect of a Guilty Plea on Prior Constitutional Claims

A. General Rulea. If pleads guilty is ordinarily barred from raising a claim in federal court of

a constitutional violation that occurred prior to the guilty plea

b. is not barred from proving that there was a procedural defect in theguilty plea procedure itself, or that the plea was not voluntarily or

intelligently made

B. Exceptions to the General Rule

a. Although a assumes the risk of ordinary error by her attorney, she doesnot assume the risk that her lawyer is incompetent

b. Distinction between factual verses legal guilta plea of guilty is an

admission of factual guilt and therefore removes that issue from the case;it does not remove claims that the may not be legally subjected to

conviction and punishment

C. Conditional Pleasa. If the court and the prosecution consent, the may enter a conditional

plea of guilty or nolo contrendere, reserving the right, on appeal from the

judgment, to review of the adverse determination of any specified pretrial

motionb. Defendant then appeals and if prevails then may withdraw the plea

c. Saves on judicial resources as dont have to have a full trial

V. Plea Bargaining: General PrincipalsA. Overview

a. The process by which a defendant in a criminal prosecution agrees, in

exchange for some official concession, to an act of self-convictionb. The S.Ct made clear that plea bargaining is not unconstitutional per se

B. Types of Plea Agreements

a. Usually involves charge bargaining, sentence bargaining or both


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b. Charge bargainingin exchange for guilty plea for some charges other

charges will be dropped or to accept a plea of a lesser degree of the charge

c. Sentencing bargainingin exchange for guilty plea prosecutor will eitherrecommend to the judge a lesser sentence or a specific sentence

C. Federal Plea Agreement Procedures

a. The prosecution and the defendants attorney or the defendant himself toengage in plea negotiations

b. Judge is not required to accept a dismissal, charge-reduction, or sentencing

plea agreement, although the rules are silent regarding the factors sheshould consider in determining whether to accept

c. If judge rejects plea agreement, must be given opportunity to withdraw

the plea and must be informed that failure to withdraw may lead to the

disposition of the case to be less favorable to than what wascontemplated in the plea agreement

d. A guilty plea based on sentencing-recommendation may be treated

differently depending on the jurisdiction

i. The sentencing-recommendation does not have to be followed by ajudge

ii. The judge must inform the that the judge does not have to followthe recommendation and that the has no right to withdraw the

plea

e. A guilty plea that was later withdrawn cannot be introduced against the in any civil or criminal proceeding, neither can any statements made to the

prosecutor in the plea negationsthis protection can be waived by

D. Judicial Participation in Plea Negotiations

a. A judge might initiate bargaining btw the prosecution and the defenseb. The judge might participated as an information provider, by answering

questions about her sentencing philosophy if decides to stand trial

c. Fed Rule of Crim. Pro. prohibit judicial participation in plea agreementdiscussions

d. A bar on participation would serve the s interest in not being coerced to

plead guiltye. Judge has a competing interest in judicial economy

f. In order to maintain the appearance and reality of a fair trial, the judge

participating in plea negotiations might be barred from conducting the

trial, if negotiations break downVI. Plea Bargaining: Policy Debate

A. Is Plea Bargaining Inevitable?

a. If bargaining were not permitted, the guilty-plea rate would dropsubstantially, resulting in increased number of trials and overwhelm the

criminal justice system

b. If bargaining is desirable, the law should recognize this fact and allow theprocess to proceed in a comparatively unfettered manner

B. Is Plea Bargaining Good in Principle?

a. In Support of Plea Bargaining


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i. Negotiation process permits the accused to determine rationally

whether the contemplated punishment is lower than the anticipated

post-trial sentence, discounted by the possibility of acquittalii. Plea bargaining is beneficial to the prosecutor

iii. Society more efficiently attains the objectives of criminal

punishment, by ensuring that it is more promptly imposed andscarce resources are conserved for those trials where there is an

issue of s guilt or innocence

b. In Opposition to Plea Bargainingi. Overview: Serving the Interests of the Powerful

1. Plea bargaining is a great tool of the defense and prosecutor

and the judges and courts but is not always in the best

interest of the interest of the real parties, the defendant, thepublic, and the victim

2. It prejudices crime control interests of the community

3. It affects the accuseds constitutional rights

ii. Sentencing Differential1. It results in undue leniency to criminals

2. Reduced penalties reduce the deterrent value of punishment3. Plea bargaining unfairly burdens a choosing to assert his

constitutional right to a trial

iii. Prosecutorial Overcharging1. Many critics believe that prosecutors overcharge and as a

result plea bargaining deals are mostly illusory

2. Prosecutors charge as many crimes and the highest degree

of offense that the evidence will remotely permit3. The prosecutors uses these charges to entice the to

engage in plea bargaining even if there is no possible way

the jury would find BRD on most of the charges anywayiv. Inadequate Representation

1. Some critics question whether the quality of representation

of s in the bargaining process is in the best interest of the

2. Private defense attorneys too often become pleaders

3. Even the most ethical public defender, forced to deal with a

huge caseload, is apt to rely too heavily on plea bargaining4. Public defenders have an incentive to cooperate with the

prosecutors with whom they deal on a daily basis

5. Lawyers, like others, do not like to be wrong, and thedecision to plead guilty is never wrong, in the sense that

there is no way to determine whether the client would have

been acquitted or received a more lenient penalty had sheproceeded to trial

v. Conviction of the Innocent

1. Incompetent representation enhances the risk that an

innocent person will be convicted


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2. Lawful plea bargaining often places too much pressures on

s, especially those who are risk-adverse

3. Advocated of plea bargaining state that innocent personsare not necessarily exonerated at trial and so it is

appropriate to give a an opportunity to decide whether to

take the riskVII. Plea Bargaining: Broken Deals and Withdrawn Offers

A. Broken Deals

a. Once plea negotiations result in an agreement, the parties are expected toabide by their promises

b. When a guilty plea rests in significant part on a promise or agreement of

the prosecutor, so that it can be said to be part of the inducement or

consideration, such promise must be fulfilledc. Two possible remedies for broken deals

i. Trial court can require specific performance of the deal

ii. Or can vacate the plea and permit to plea anew to original charge

B. Withdrawn Offersa. Govt may permissibly revoke an offer, even after acceptance, at least if

there has been no detrimental reliance on the offerb. Even if the prosecutor was negligent in making and withdrawing the offer,

the Court says that the due process clause is not a code of ethics for

prosecutors

VIII. Prosecutorial and Judicial Vindictiveness

A. Explanation of the Issue

a. There is a tension in the law

b. On the one hand, the law affords prosecutors substantial discretion indetermining whether to prosecute and what charges to bring

c. On the other hand, with substantial discretion comes the power to abuse

and a prosecutor might be severe for inappropriate reasonsB. The Original Vindictiveness Rules

a. Judicial Vindictiveness: The Pearce Principle

i. A judge may not punish a for successfully appealing aconviction by imposing a more severe sentence after a second trial

and conviction

ii. A judge may not impose a more severe sentence the second time

around unless the reasons for doing so appear on the record and arebased upon objective information concerning identifiable conduct

on the part of the occurring after the time of the original

sentencing proceedingb. Prosecutorial Vindictiveness: The Blackledge Principal

i. A prosecutor may not bring a more serious charge after a has

been once tried and convictedii. Unless it had been impossible to proceed on the more serious

charge at the beginning of the trial

C. The Supreme Court Narrows the Vindictiveness Rules

a. Pearce-Blackledge Becomes a Rebuttable Presumption


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i. The Constitution is not violated unless an enhanced sentence or

charge is motivated by actual vindictiveness toward for having

exercised a rightii. The due process clause does prohibit actual vindictiveness in

judicial sentencing and prosecutiorial charging and if can prove

such vindictiveness then the enhanced penalty or charge will bevoided

b. When Does the Presumption of Vindictiveness Apply

i. Judicial Vindictiveness1. Presumption applies in those circumstances in which there

is a reasonable likelihood that an increase in sentence was

the result of vindictiveness

2. Does not apply if the second sentence is applied by adifferent sentencer than the first trial

3. Does not apply even if the same sentecer is involved if the

original and lesser sentence was imposed after a guilty plea

4. Does not apply if special circumstances in the case suggestthat there is no reasonable likelihood that the increase in

sentence was the result of vindictivenessii. Prosecutorial VindictivenessCourt refused to apply the

presumption in the context of pretrial plea bargaining

c. How May the Presumptions be Rubuttedi. Judicial Vindictivenessmay be overcome on the basis of any

objective information that justifies an increased sentence, including

information relating to s conduct that occurred before the

original sentencing proceedingii. Prosecutorial Vindictivenessin limited circumstances, namely

when the govt could show that it was impossible to proceed on the

more serious charge at the outset


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Double Jeopardy

I. General Principles

A. Constitutional Texta. In General

i. 5th Amendmentno person shall be subject for the same offence

to be twice put in jeopardy of life or limbii. Applicable to the states through the 14th Amendment DP clause

b. In Jeopardy

i. A person is not in jeopardy until the jury is empaneled and swornin or for a bench trial until the first witness is sworn in

ii. The prosecution is not barred from appealing a pretrial dismissal of

criminal charges against a or from refilling charges against him,

even if a courts ruling was based on evidence that would havebeen introduced at trial

c. Of Life and Limb

i. Generallyapplies to all crimes including those offenses for

which only potential punishment is a monetary fineii. Civil versus Criminal Proceedings and Penalties

1. A legislature may impose both a criminal and a civilsanction in respect to the same act or omission; for the

double jeopardy clause prohibits merely punishing twice, or

attempting a second time to punish criminally, for the sameoffense

2. However, the govt cannot escape double jeopardy by

simply labeling a proceeding as civil

3. Two step approach to deciding if it is civil or criminala. Whether the legislature in establishing the

penalizing mechanism, indicated either expressly or

impliedly a preference for one label or the otherb. Whether the statutory scheme was so punitive either

in purpose or effect as to transform what was

clearly intended as a civil remedy into a criminalpenalty

i. Whether the sanction involves an

affirmative disability or restraint

ii. Whether it has historically been regarded asa punishment

iii. Whether it comes into play only on a finding

of scienteriv. Whether its operation will promote the

traditional aims of punishment

v. Whether the behavior to which it applies isalready a crime

vi. Whether an alternative purpose to which it

may rationally be connected is assignable

for it


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vii. Whether it appears excessive in relation to

the alternative purpose assigned

4. Will rarely be a case in which imposition of monetarypenalty will bar later criminal prosecutions based on double

jeopardy

5. Also nearly impossible to contest civil forfeitures on thebasis of double jeopardy

B. Dual Sovereignty Doctrine

a. Conduct may simultaneously constitute a violation of federal and state lawb. A single act may also constitute a violation of criminal statutes in more

than one state

c. May also violate state law and a local ordinance

d. An act denounced as a crime by both national and state sovereignties is anoffense against the peace and dignity of both and may be prosecuted and

punished by both

i. Thus, it is permissible for the federal govt. (or a different state) to

prosecute after a state prosecution of the same conduct or vice-versa

ii. U.S. v. Lanza , 260 U.S. 377 (1922). Prosecutions under laws ofseparate sovereigns are prosecutions of different offenses, not

reprosecutions of the same offense.

e. The doctrine also applies to duel state prosecutionsf. A city is considered a subordinate instrumentality of the state in which it is

located and is not an independent sovereign for purpose of the double

jeopardy clause

g. Doctrine is needed to vindicate federal interestsC. Guarantees of the Double Jeopardy Clause

a. Consists of three separate constitutional protections

i. Protects against a second prosecution for the same offense afteracquittal

ii. Protects against a second prosecution after conviction

iii. Protects against multiple punishments for the same offenseb. Also protects against reprosecution after certain dismissals; and embodied

in the prohibition of double jeopardy is the doctrine of collateral estoppel

D. Values Underlying the Double Jeopardy Clause

a. Reprosecution for the same offense subjects the individual toembarrassment, expense and ordeal and compels him to live in a

continuing state of anxiety and insecurity

b. Reprosecution creates an unacceptably high risk that the govt will convictan innocent person by wearing him down with its superior resources

c. The govt may use the first trial as a dry run for the second prosecution

d. 5th Amendment protects the s right to have his trial completed by aparticular tribunal, once the trial begins has a weighty interest in being

able, once and for all, to conclude his confrontation with society through

the verdict of a tribunal he might believe to be favorably disposed to his

fate


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e. The double jeopardy clause is to preserve the finality of judgment

II. Reprosecution After a Mistrial

A. General Principlesa. Mistrialjudicial termination of a trial before a verdict is reached granted

on the motion of either party or sua sponte

b. Intention of judge is that prosecutor will be able to reprosecutec. The general bar on reprosecution following a mistrialas limited as that

prohibition isonly applies if the mistrial was granted over the

defendants objections

B. Mistrials over the s Objection

a. The Manifest Necessity Standard

i. Reprosecution following a defendant-opposed mistrial is permitted

if a manifest necessity existed for terminating the trialif the endsof public justice would otherwise be defeated

ii. The power to declare a mistrial must only be used with the greatest

of caution, under urgent circumstances, and for very plain and

obvious causesiii. The general bar on reprosecution following a mistrial only applies

if the mistrial was granted over the defendants objection.b. Manifest Necessity: The Case Law

i. Early Casesuntil 1963 S. Ct upheld every retrial that followed

the grant of a defense-opposed mistrial that it consideredii. The Temporary Radical Transformationmistrials should only be

granted in very extraordinary and striking circumstances

iii. The Supreme Court Turns Direction Againa trial judge properly

exercises his discretion to declare a mistrial if an impartial verdictcannot be reached, or if a verdict of conviction could be reached

but would have to be reversed on appeal due to an obvious

procedural error in the trialc. Making Sense of the Case Law

i. Four factors are important in mistrial cases

1. Whether the govt was responsible for the difficulty thatgave rise to the motion for the mistrial

2. Whether the motivation of the party associated with the

difficultly was wrongful

3. Whether the defendant suffered special prejudice from themistrial

4. Whether there were meaningful alternatives to the mistrial

ii. A mistrial will probably be found to be improper if there is afinding against the govt on 1 and 2 or on 1 and 4 but not on 1

alone

C. Mistrials With the Defendants Consent

a. General Rule

i. A who requests a mistrial or who consents to one may not object

on double jeopardy grounds to the institution of a second trial


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ii. Serves a deliberate relinquishment of his constitutional interest in

obtaining a verdict at the first trial

b. Exception: Intent to Provoke a Mistrial MotionReprosecution is barred,even when a mistrial is declared at the s request, if the prosecutor or

judge intended to provoke or goad the mistrial motion

III. Reprosecution After an AcquittalA. Rule

a. In General

i. Acquittals are accorded special weight in double jeopardyjurisprudencea defendant who is acquitted of an offense may not

be prosecuted again for the same offense

ii. The prohibition applied whether the acquittal was the result of

1. A not guilty verdict by jury or judge2. An implied acquittal by jury or judge

3. Ruling by a judge that represents a resolution in the

defendants favor of some or all of the factual elements of

the offense chargediii. The prohibition applies even if the verdict is based upon an

egregiously erroneous foundationiv. may not be retried if the acquittal if the legal rulings underlying

the acquittal were erroneous

v. Reprosecution is also prohibited if the verdict was the result of thejudges erroneous exclusion of evidence favorable to the

prosecution at trial

b. Appealing an Acquittalthe double jeopardy bar does not prevent the

govt from appealing an acquittal if the would not be exposed to asecond trial if the appeal were successful

B. Should the Rule be Modified?

a. To permit a second trial after an acquittal would present an unacceptablyhigh risk that the govt might wear down a so that even though he is

innocent he may be found guilty

b. If a jury acquittal, it may be the product of the jurys legitimate authorityto acquit against the evidence, that is no nullify the law

IV. Reprosecution After a Dismissal

A. Nature of a Dismissal

a. Often takes the appearance of a mistrial or acquittalb. Involves a judicial termination of the trial before a verdict is reached

c. The granting of a dismissal contemplates that the proceedings will

terminate then and there in favor of the defendantd. Involves the termination of the trial in the defendants favor on a basis

unrelated to factual guilt or innocence

B. General Rulesa. Dismissal of Defendants Motiongovt is barred from appealing a

dismissal


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b. Dismissal Without Defendants Consentwhen charges are dismissed

without the defendants consent he is denied primary control over his fate

and the can appeal the dismissal

V. Reprosecution After a Conviction

A. General Rule

a. The govt may not reprosecute a convicted for the same offense if he doesnot appeal his conviction or if his appeal is unsuccessful

b. Double jeopardy does not bar reprosecution of a who successfully

appeals his conviction on the basis of prejudicial error in the priorproceeding

B. When Reprosecution is Barred

a. Insufficiency of the Evidence

i. The Burks Principle--govt is barred from reprosecuting apreviously convicted defendant if an appellate court reverses the

conviction on the sole ground that the evidence presented at the

trial was insufficient to sustain the guilty verdict

ii. When Burks Does Not Apply1. Reprosecution is not barred if the appellate court of trial

judge reverses the conviction on the basis of the weight,rather than the sufficiency of the evidence

2. Does not apply after a mistrial is granted

3. Reprosecution is permitted after a successful appeal by a as long as the evidence is offered by the state and admitted

by the trial courtwhether erroneously or notwould

have been sufficient to sustain a guilty verdict

iii. Prosecutorial Misconductreprosecution after a successful appealshould be barred in the case of certain forms of prosecutorial

misconduct

C. Special Problem: Convictions With Implied Acquittalsa. Verdict Acquittalif a is acquitted on one of the charges (usually when

charged of a lesser included offense) then cannot be recharged of the

implicitly acquitted chargeb. Sentence Acquittal

i. Generally double jeopardy is not violated if a judge imposes a

more severe punishment up to the maximum allowed under the

law, after any subsequent reprosecution and convictionii. Different rule applies in capital-sentencing context because the

sentencing procedure is a separate trial, sentencing to life is an

acquittal of the death sentence

VI. Government Appeals of Criminal Sentences

A. The federal govt has no right to appeal in criminal proceedings absent explict

statutory authorityB. The federal govt may appeal a final sentence, following a conviction, if it

believes that the sentence imposed was in violation of the law or sentencing

guidelines, was imposed as a result of an incorrect application of the sentencing

guidelines, or was otherwise plainly unreasonable


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VII. Multiple Prosecutions of the Same Offense

A. An Overview of the Problems Ahead

a. Unit of Prosecution Problemhas to do with how to deal with multipleoffenses that occur at the same time

b. A single act may constitute a violation of two or more distinct statutory

provisionsseparate statutory crimes need not be identical in order to bethe same within the meaning of the constitutional prohibition

c. And does double jeopardy only apply to multiple prosecution for the same

offense or does it also apply to multiple punishments for the same offenseB. Same Offense: The Blockburger Rule

a. Provides that two distinct statutory provisions constitute separate offenses

if each provision requires proof of a fact the other does not

b. If application of the Blockburger test reveals that the two offenses haveidentical statutory elements or that one is a lesser included offense of the

other, than the inquiry must cease, and subsequent prosecution is barred

C. Same Offense: Beyond Blockburger

a. Harris v. Oklahoma: A Minor Variation on the Blockburger Themefinding the felony to be a lesser included offense to felony murder

b. Grady v. Corbin: A Broad (but Temporary) Addition to BlockburgertheDouble Jeopardy Clause bars a subsequent prosecution if, to establish an

essential element of one offense charged in that prosecution, the govt will

prove conduct that constitutes an offense for which the defendant hasalready been prosecuted

c. U.S. v. Dixon: Back to Harris?Court overruled Corbin

D. Exceptions to the General Rule

a. If two statutory provisions constitute the same offense under theapplicable law, multiple prosecutions are not barred in all circumstances

b. An exception may exist where the state is unable to proceed on the more

serious charge at the outset because the additional facts necessary tosustain the charge have not occurred or have not been discovered despite

the exercise of due diligence

c. The no-successive prosecution rule does not apply if a is retried on thesame charge after a mistrial, dismissal, or after a conviction is reversed on

appeal

d. Double jeopardy is not violated when the defendant requests separate trials

on the greater and lesser offenses, or in connection with his opposition totrial together, fails to raise the issue that one offense might be a lesser

included offense of the other

VIII. Excessive PunishmentsA. Excessive Punishments

a. In Generaldouble jeopardy clause prohibits punishment in excess of that

authorized by the legislatureb. Credit for Time Serveddouble jeopardy clause is violated when

punishment already exacted for an offense is not fully credited in

imposing sentence upon a new conviction for the same offense

B. Multiple Punishments


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a. In Generalthe imposition of cumulative punishments for two crimes that

constitute the same offense under the Blockburger test is not in itself a

violation of the double jeopardy clauseis not barred if legislatureintended to permit it

b. Sentence Enhancement for Uncharged Criminal Conductas long as a

defendants sentence falls within the legislatively authorized punishmentrange, consideration of offender-specific information at sentencing does

not result in punishment for such conduct and so does not violate double

jeopardy

IX. Collateral Estoppel

A. Nature of the Doctrine

a. Collateral Estoppel means simply that when an issue of ultimate fact hasonce been determined by a valid and final judgment, that issue cannot

again be litigated btw the same parties in any future lawsuit

b. A court must examine all of the relevant matters in the case in order to

determine whether a rational jury could have grounded its verdict upon anissue other than that which the seeks to foreclose from consideration

c. Govt is not permitted to take advantage of the collateral estoppel doctrinein criminal cases

B. Limits on Application of the Doctrine

a. It can only be invoked if a rational jury could not have grounded itsverdict on nay basis other than the claim that the defendant seeks to

foreclose from further consideration

b. The doctrine applies only if the issue in question has been adjudicated to a

valid and final judgmentc. The doctrine does not apply in a proceeding in which a lower standard of

proof is permitted than at a criminal trial

crimpro_adjud_outline.doc

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