Schaffer Criminal Procedure Outline 2002

I. Introduction:

A. criminal v. civil case - there is a strong presumption that the legislative label is valid
to overcome, must show that statute is so putative in purpose or effect that negates
Congress label
protections in criminal case not in civil: right to jury trial, 5th amendment without negative
presumption, reasonable doubt standard
the absence of ability to treat a condition does not preclude civil commitment
must decide if civil punishment is just a cover for criminal punishment
Hendricks(p2): committing sexual predator is civil but must be some lack of control
determination by a court, it cannot be a proxy for criminal proceedings
if no inability to control then the case moves to the criminal side
if any inability to control then can treat offender civilly

B. Sources of Law
US Constitution
Constitutions of the several states: can grant more but not fewer rights
if state and federal constitutions are identical, how can the state where there is New
Federalism decide differently than federal; NYS created a 4 point test:
was there pre-existing statutory or common law
what were the history and traditions of NYS regarding this particular right
is there any identification of the particular right in the NY constitution as state or
local concern
are there any special attitudes of the citizenry
Statutes: federal rules of criminal procedure (look at in supplement)
Regulations
Supervisory Power: this was used with unreasonable pre-arraignment delay, also used when
states go too far
Incorporation Doctrine:
Fourteenth Due Process Clause binds states to portion of Bill of Rights fundamental
to our concept of ordered liberty, Sixth right to jury trial is binding on the states
Duncan(p9)
provisions are binding on the states except for right to indictment by grand jury
clause and prohibition of bail clause
Black in the dissent (p11) wanted total incorporation based on privileges and
immunities clause

C. appellate review standard for defendant claiming that facts not add up to guilty:
no reasonable jury could have reasonable have found guilt beyond a reasonable doubt; very
deferential

II. Rule 52. Harmless Error and Plain Error(s366)

A. harmless error which does not affect substantial rights shall be disregarded

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 even an error of constitutional magnitude
must be harmless beyond a reasonable doubt

B. plain error may be noticed even if not brought in trial court

it must be a substantial error to be allowed under this rule
plain error test Johnson
(1) error
(2) that is plain
(3) that affects substantial rights: must have affected the outcome of the proceedings
(4) that seriously affects the fairness, integrity, or public reputation of judicial
proceedings

III. Probable Cause

A. under Fourth need probable cause (more likely than not, > 50% chance) to arrest but need
only reasonable suspicion to stop and frisk Gates(p91)
initial probable cause determination if using informers
totality of circumstances test: not require preponderance, need a probability of
criminal activity Gates; 2 prong test: (p93 column 2)
1) voracity/credibility: whether the person who tells the fact is a truth teller
2) basis of knowledge: how does the speaker know
personal knowledge is great (not hearsay or something else)
if both prongs are given perfect scores then the facts are accepted completely
the revolutionary aspect of Gates was that the weakness of one prong can be made
up for in the other, dont need to satisfy both prongs
judicial review of probable cause determination:
test for judicial review of probable cause is substantial basis test (p95 column 2); this
is deferential review of the lower court
Supreme Court never uses arithmetic but it seems to be 38-42% chance is probable cause
based on jurisprudence
with a warrantless arrest cops make probable cause determination
with a warrant a magistrate makes this decision
a Fourth Amendment event - an arrest with probable cause

IV. Pretext Arrests: probable cause justifies search and seizure and ends Fourth inquiry

A. Whren(p290); can just use traffic violation as a pretext to search

motives of police do not matter; need reasonable cause to believe that the suspect violated
traffic laws, court not want subjective analysis
requirement is whether the police officer could have lawfully stopped the car, so only need
probable cause
when police make a lawful custodial arrest they get a search of the person automatically,
even if no reason to believe that the suspect is dangerous and no reason to believe that there
will be evidence Robinson(p292)
this creates an enormously powerful incentive to arrest as a law enforcement tool, creates
the pretext problem

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V. The Screening and Charging Process(p803-30)

A. Screening by the police: p808 probs; should police decide, should prosecutor decide

B. Prosecutorial Discretion: which ones are important, 6 of them: (p814+)

refusing to prosecute even in face of mandatory statutory language
refusing to prosecute a category of crimes
refusing to sign off on a grand jury indictment
choosing whatever crime you please
choosing to bring a state rather than federal prosecution
choosing to indict for a statute with a higher penalty or indicting for both

C. some limitations on the prosecutorial discretion

sometimes the grand jury doesnt need the prosecutors approval
dissatisfied grand jury can request special prosecutor
governor Pataki assigned special prosecutor for death penalty cases

D. Racial Profiling in Kennedy Article

under many but not all circumstances it may not even be one of the criteria used let alone
the sole criterion; goes against the Equal Protection Clause Kennedy
acknowledges that ceasing to use the racial variable is ceasing to use beneficial
information
he goes further by using the strict scrutiny analysis: using race is subject to strict
scrutiny; the two prong test:
Kennedys 2 prong test for racial profiling violating the equal protection clause:
(1) must serve a compelling state interest
(2) statute must be narrowly tailored
held constitutional to arrest black man getting off of plane in Kansas City Weaver
hypothetical where use color that person is and flees is sometimes allowable
depends on how much description, time passed
the question is: does the use of race implicate too large a group

E. Selective Prosecution
2 prongs to achieve a selective prosecution claim, must show: Armstrong(p818)
(1) discriminatory effect: similarly situated individuals of a different race were not
prosecuted
(2) discriminatory intent: can be shown using statistics
this is very hard to prove because Rule 16 does not require disclosure if it is not material to
the preparation of the defendants case Armstrong(p818)
road-block in one neighborhood not selective prosecution, this is superficial Turner

F. Remedy for these Equal Protection violations in selective prosecution case

for Fourth Amendment claims the remedy is suppression of the evidence in the
governments case in chief

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 harmless error doctrine says that even a constitutional error can be overlooked even in the
admission of evidence if it was harmless beyond a reasonable doubt
so there might be no remedy in some cases
if Armstrong had proven selective enforcement the remedy would have been a reversal

G. can have a private lawyer be a prosecutor but cant be a beneficiary to the hearing Young(p812)
court used supervisory power and held not harmless error to do so
the plurality would have used due process as well
Scalia would have relied on the separation of powers doctrine

VI. Grand Jury(p830-60, s170): Fifth is the origin, protects from incorrect prosecution, not enforceable
on states

A. Rule 6. The Grand Jury(s320): in the federal system: cannot charge someone with a felony
unless they have been indicted by a grand jury, unless you waive that right; most states
incorporate right to grand jury, states that dont incorporate use a prosecutors information
Rule 6 (p837) the grand jury minutes must be taped
this is not required by the Constitution
want to find contradictions between grand jury and trial testimony for cross examination
so want to get the transcript as early as possible
the requirement is particularized need to get grand jury testimony disclosed Sells
Engineering(p842); particularized imposes an enormous burden
Grand Jury Secrecy: Rule 6(e)(2): enumerated persons shall not disclose matters occurring
before the grand jury except as provided in the rules
no obligation of secrecy may be imposed on a person except in accordance with this
rule
but grand jury witness can disclose his testimony at will, not bind witnesses
Florida statute unconstitutional insofar as it prohibited witnesses from discussing his
her testimony after the grand jury term had expired Butterworth(p842); First
interest outweighed Floridas interest in keeping secret
USA Patriot Act: allows attorney for government to disclose any grand jury matter
involving foreign intelligence to any law enforcement official to assist that official in
performing his or her duties

B. can claim racial discrimination, see below

not subject to harmless error
for grand jury proceedings, counsel must go out and interview people

C. Challenging the Grand Jury Indictment:

defective indictment: does not deprive the court of jurisdiction so using the plain error test
there was substantial evidence presented at trial about the drugs and that is enough
Cotton(s171)
the amount of drug quantity was not alleged in the indictment and it carries a mandatory
minimum sentence but upheld because not achieve plain error test
remedy: was plain error and not harmless error because not raise issue at trial

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 prosecutorial conduct: to obtain the dismissal on the grounds of prosecutorial conduct
before the grand jury must prove overbearing the will of the grand jury McKenzie(p844
footnote)
violation of Rule 6(d) was where 2 agents testified in tandem before the grand jury
harmless error and didnt affect the trial Mechanik(p838)
very hard to get dismissal from grand jury unless substantially influence the grand
jurys decision to indict
Bank of Nova Scotia: used supervisory power and rule harmless error
grand jury witness committed perjury: and this testimony played a significant role in the
indictment and since that time at a jury trial he was convicted beyond a reasonable doubt
want to argue not harmless error, Rule 52
if discovered after trial then sometimes there is a remedy for the client
could argue that if the witness testifies at trial and only discover grand jury perjury
after trial and had you known it during the trial you would have done a better job in
cross examination then there is a potential for argument
want to argue that could have exploited a contradiction between the grand jury and
trial, want to argue that the trial would have been different if knew about this perjury
if had discovered during trial then argue that without perjured testimony there wouldnt
be probable cause for grand jury indictment
NTNDE - basis for new trial on newly discovered evidence
would use this if the perjury were at the trial

D. Grand Jury and the Court(p843-44)

no true bill: grand jury refuses to indict
can re-present the case to a grand jury: enormous power, erodes grand jury and probable
cause
some jurisdictions have statutory rule that requires new evidence to re-present

E. The Evidence Before the Grand Jury(p846-50)

prosecutor can offer evidence to grand jury that cannot offer at trial Costello(p846)
gets no review of evidence that is presented to the grand jury, can use hearsay
grand jury proceedings would be greatly burdened if the rules of evidence were
followed (p848)
grand jury is an ex parte proceeding not an adversary proceeding
can use illegally seized evidence at grand jury Calandra(p848)
not use exclusionary rule because it would unduly interfere with the effective and
expeditious discharge of the grand jurys duties
the marginal value of applying the exclusionary rule to the grand jury is not
sufficiently large and sufficient deterrence flows from the exclusion of evidence at
trial; this is an example of the erosion of the exclusionary rule
SC was worried about defense attorneys stalling the trial in Calandra and Costello
in NY the evidence must be admissible at trial to be admissible in the grand jury
a defense lawyer can make a motion to inspect and dismiss
the judge must read the grand jury minutes and determine if there is enough legally
admissible evidence to have a trial; very rarely granted, judges dont have the time

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F. The Grand Jurys Power of Investigation(p850-60)
the power of the grand jury to obtain evidence is vast:
an objection to the breadth of the grand jury investigation, and its broad use of subpoena
power is usually dismissed out of hand Dionisio(p852)
facts: grand jury subpoenas to get voice samples
this is the landmark case in how far the grand jury can reach
SC held that it is not a seizure under the Fourth and therefore not limited by the
reasonable standard
there is no seizure with a subpoena because the state isnt acting coercively, the
subpoena is an order to testify but not a seizure
the grand jury can call as many as they want
there is no Fourth problem with a grand jury subpoena
overly broad or burdensome subpoenas are attackable by motion
based on history it is limited by the Fourth as a search or seizure even though it
really isnt a search or seizure
the grand jury is not an adjudicatory body, it is an investigative body
the SC doesnt like to limit or bother the grand jury
*test to quash a grand jury subpoena: U.S. v R. Enterprises(p854): the subpoena will be
quashed if there is no reasonable possibility that the category of materials will produce
information relevant to the general subject of the grand jurys investigation
the words category and general are very broad, this standard is broad, very
rarely quashable
Branzburg v Hayes(1972)(p850): reporter said would compromise his relationship with
Black Panthers but SC said he couldnt refuse to appear or answer questions
in a very recent case: a judge, citing Branzburg, in NY held that a grand jury was
entitled to documents that were in another country even though it was illegal to take the
documents out of the other country
Regulating Abuses(p855)
Ealy v Littlejohn(1978): leading case for state misusing grand jury to collect
information; violated First Amendment rights; investigation had no arguable
relationship to case
Prosecutorial misbehavior before the grand jury
despite harmless error issues, a recent case found this had occurred when the
prosecutor had asked court reporter to leave during opening and closing statements
California procedure requires this to be recorded (he also threw out the tape)

G. Exculpatory evidence: the prosecutor does not have to present exculpatory evidence to the
grand jury Williams(p848): the SC says (5-4) that no such use can be made of the supervisory
power over the grand jury
it would alter the grand jury role - the grand jury is not an adjudicatory body, it is an
investigative body so cant force prosecutor to make the process adjudicatory
US Attorney manual says that prosecutor must disclose exculpatory evidence
when someone testifies in the grand jury they are not entitled to the Miranda warning
because you are not in custody, Miranda applies to custodial investigation
no right to attorney present but can have one outside the grand jury room

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 H. Attorneys and the Grand Jury
attorneys not usually allowed in the grand jury room in federal court; the client goes in
alone and lawyer sits outside and prays he just reads his card with Fifth Amendment
the client can step out and see his lawyer during testimony
there is no judge or bailiff so afraid that lawyer might misbehave
Can you subpoena information from a defense lawyer (p853)
an attorney must disclose his client and the fee unless it would disclose the clients
reasons for seeking counsel
prosecutors not need show relevant but should only do if it is essential to his case
might want to know for tax evasion
government can obtain forfeiture of the fruits of a crime before the case so he cant finance
an expensive defense with the proceeds of the crime

VII. Bail and Pretrial Detention(p868-902, s174): Eighth Amendment (Excessive Bail Clause)
only prohibits excessive bail, doesnt grant a right to bail Carlson v. Landon(p871)

A. The Operation of a Bail Release System(p872-79)

Rule 46. Release From Custody
(e) Forfeiture
(1) Declaration. If breach of condition of bond then forfeiture
breach in condition besides not appearing meant forfeiture Vaccaro(p875)
test to decide to whether to remit forfeiture Amwest Surety Ins. Co(p875)
if bail is set then it must be set to further the purposes of bail, excessive bail would violate
the Eighth Stack v. Boyle(p876): bail must be set individually for each defendant

B. Bail Reform and Preventive Detention(p880-900; s174-76)

Bail Reform Act of 1984(p880): 18 U.S.C. 3142: revolution in bail release system in U.S.
court must take into account risk of public safety posed by the accused release
if no combination of conditions is adequate to satisfy risk of flight and safety to
community then must be detained
a judge may not impose a financial condition if it will cause detention
this is revolutionary, cant set bail at an amount that cant pay; this eliminated
decades of subterfuge, judges had been setting bail at an amount they knew the
couldnt afford to keep him in jail
material witness issue 3144: federal government is empowered to detain a person as a
material witness; can arrest and incarcerate; can be detained if:
securing presence for testimony by means of a subpoena is impracticable
there is probable cause = believe that they are in possession of information that is
material to the crime
recent case: whether or not a person can be detained
only if they are a material witness for a trial, or
if statute permits detaining for a grand jury
bail is available under this statute, but it can be denied
people with roots in the community posed no more risk of flight if released on own
recognizance than if released on bail: this strongly supports ROR

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 *pretrial detention doesnt violate due process Salerno(p890): pretrial detention is
regulatory not penal (not punitive) so it is constitutional
is it excessive in relation to the alternative purpose assigned to it (p892)
it is limited to most serious crimes
there must be a prompt hearing
there is a limit to the holding time
the interest in protecting society is strong enough to support this
the SC had to address the substantive due process argument from Second Circuit:
regardless of governments interest the statute is unconstitutional; SC responds:
when the government proves by clear and convincing evidence that arrestee
presents an identified and articulable threat to an individual or the community then
it is consistent with the DPC to disable arrestee from executing that threat
in safety versus liberty, the preventive detention statute is not the first time SC has
addressed this and safety has won before
arrest on probable cause,
holding people without bail pending deportation,
war times reduce rights,
post arrest juveniles, etc.
risk of flight issue
the mere production of evidence of longstanding ties in the community does not
completely rebut the presumption that no conditions would assure s appearance at trial
Reuben(p885): set standard for pretrial detention in drug case
can rebut the presumption Giampa
Less Intrusive Alternative: is there a LIA: sometimes a court must consider this
home detention is less intrusive alternative to incarceration.
Bail Reform Act does not require heroic measures, the court rejected a complicated
home detention system to allow home detention Tortora(p886)
Congress allowed shift of the burden of production to the defendant in serious drug
offenses but government still had the burden of persuasion with respect to likelihood of
flight US v. Jessup(p885)
can hold sexual predator civilly if he is dangerous and also has a mental abnormality,
doesnt violate due process clause Kansas v. Hendricks(p898)
Zadvydas v. Davis(s174): cant just hold indefinitely, where duration could be of a
potentially infinite duration, the dangerousness condition must be joined by other special
circumstances such as mental illness that create the dangerousness

VIII. Right to Counsel(p779-802; s163-69): Sixth Amendment: in all criminal prosecutions, the
accused shall enjoy the right * * * to have the Assistance of Counsel for this defense
must be a critical stage, no Sixth right to counsel if would only be helpful
the right attaches when there are AJP (Adversarial Judicial Proceedings), or post-
indictment, as immense as Gideon was, there is no right to counsel at all times, there is a
substantial right to counsel, but it is limited on both ends
can make powerful public policy argument for right to counsel at all times
remedy: if right to counsel is denied at trial then automatic reversal, for nontrial denials,
the harmless error test is applied

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B. grant right to counsel because:
fairness and evenhandedness: adversarial system
reliability of outcome: the rules and due process are needed to assure reliable outcomes, this
is an enormous reason for why we provide counsel, this subsumes fairness

C. The Scope and Limits of the Right(p793-802): has right to counsel at critical stages
Gideon v Wainwright(1963)(p784): overruled Betts, Sixth applies to states through the
DPC of the Fourteenth for felony cases
any jail sentence requires counsel, absent an intelligent waiver, no person may be
imprisoned without being afforded counsel Argersinger v Hamlin(p788)
paying a fine does not have the right to counsel even though the offense could receive a jail
sentence, was no actual imprisonment so no right to counsel Scott v Illinois(p789)
Nichols overruled Baldasar and held that a past case without counsel can be used in future
cases where the sentence in increased to include jail as a result of the initial case
is a right to counsel at post-indictment lineup, defines critical stages Wade(p793)
pre-indictment identification does not have a right to counsel, it is not a critical stage Kirby
v. Illinois(p795)
using Wade found that preliminary hearing was a critical stage requiring the appointment
of counsel for the indigent defendant Coleman v Alabama
guilty plea and sentencing requires counsel Mempa v Rhay(p796)
suspended sentence may end up in the deprivation of a persons liberty and therefore may
not be imposed without according counsel Alabama v Shelton(s163)
case in which actual imprisonment may and does result
court rejects appointment of attorney for probation revocation proceeding
merits of the underlying conviction are not before the court
not given counsel in photographic display because no right to be present so not adversarial,
no confrontation Ash
this is one of the rare cases where no counsel is required even though is post-charge
counsel not required for discretionary appeals, court began using the DPC instead of the
EPC to determine if defendant required counsel for appeals Ross v Moffitt(p798)
not required to appoint counsel for parole and probation hearings (revocation hearing); do it
on a case-by-case basis Gagnon v Scarpelli(p800)
not guaranteed a lawyer at interrogation, most interrogations are pre-indictment, just right
to be warned of the right to a lawyer and the right to be warned of the fifth right, rights that
can be waived, gives the right to cutoff questioning Miranda

D. Details on the Right to Counsel

government cannot use statements at an indigence hearing (had to prove indigence to get
counsel under the Sixth) at a criminal trial because the tension between the fifth and sixth
would be unacceptable; can use that to prosecute at trial Pavelko(p787)
but can impeach a with a prior statement from the REOP or indigence hearing
SC said you cant use the constitutional right as a sword but can use as a shield
can impeach the using this testimony, dont want s lying knowing they cant be
impeached in the future

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IX. The Right to Counsel and the Right to Effective Counsel(p1214-1309, s245-80): EAC - Effective
Assistance of Counsel from Sixth Amendment

A. Ineffectiveness and Prejudice(p1214-48, s245-67)

Strickland v Washington(p1215): EAC is presumed unless the adversarial process was
undermined
2 prong test for IAC (Ineffective assistance of counsel): the test is highly deferential
toward EAC
performance prong: counsels performance must have been deficient
prejudice prong: reasonable probability test: reasonable probability that but for
the counsel the proceedings would have been different
even if one retains counsel, the same effectiveness standard is available Cuyler
examples of IAC
allowing jury to learn about other arrests
failure to advise a of the right to appeal are serious attorney error

B. Applying the Strickland test:

performance prong(p1230): deficient performance of counsel
objective standard of reasonableness
if it was a strategic choice, it passes the performance prong unless undermines
reliability on the outcome
reasonable performance within the context of the case, under the professional norms
where the case is; there is a range on adequate performance
strong presumption of adequate performance
there is a lot of wiggle room with all these factors, lots of deference
the court listed the duties of counsel but it refused to adopt a checklist
loyalty, conflict-free, consultation ...
the court often skips the performance prong and just says it doesnt matter because
there was no prejudice
strategic choice: usually strategic choice is EAC but there are cases where strategy
doesnt support effective counsel
where lawyer chooses not to participate in the trial as a strategy because his motion
for not having enough time was rejected it was strategic but was still a failure of
performance
the lawyer didnt put in the witness to establish self-defense and even though it was
strategic, it was still a failure of performance Chambers(p1232)
not a failure of performance where lawyer relied on statements of client and did no
investigation (p1235)
SO Strickland tells us you can rely on your client but dont!
if have no strategy at all that is ineffective counsel
must investigate; no investigation is ineffective Lomsomback(p1235)
counsel has a duty to investigate whether the s story is plausible or may be found
ineffective Johnson(p1236)
failure to call any of 25 disinterested witnesses in a credibility inquiry

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 fear of rebuttal can constitute EAC, so fear of rebuttal is a filter through which we judge
performance Darden(p1230): held could have been a strategic decision that defense
counsel produced no evidence of mitigation
ignorance of the law is IAC, is not a strategic choice
attorney conducted no discovery at all and it was IAC Kimmelman(p1230)
prejudice prong(p1238): reasonable probability test: reasonable probability that but for
the counsel the proceedings would have been different
the errors were so serious as to deprive the defendant of a fair trial - a trial whose
result is reliable
it is not enough to show that the errors had some conceivable effect on the outcome
must prove it was not harmless error
sometimes it is presumed or partly presumed
the weaker the case the more chance a attorney has in achieving an IAC claim
because it has a better chance of being prejudicial
the reasonable probability test comes from Agurs(p1222): defines test for getting a
new trial when the prosecution has withheld material exculpatory evidence
this lower than more likely than not! the test is less than 50/50
for newly discovered evidence the standard is more likely than not, it is harder
because of finality interest: the case has been decided in an ineffective counsel
under what circumstances would a failure to make a motion to suppress evidence not be
a failure of performance, would want to argue harmless error as
motion would not have succeeded
even if had made the motion and it had succeeded then the would have been
convicted anyway
the question is whether we have faith in the reliability of the outcome, as in
Strickland
successful argument under Strickland that IAC occurred in entering a guilty plea
Hill(p1241): was IAC because but for counsels errors he wouldnt have pleaded
guilty; very strong case for the prejudice prong
mis-advice on parole may or may not be prejudice (p1242)
failure to object to sentencing guidelines is always prejudice Glover(s254)
mis-advice to go to trial and getting longer sentence can be prejudice Toro(p1242)
Lockhart v. Fretwell(p1239): prejudice assessed at time of review, seen in hindsight to
rule harmless error
held: the trial was not unfair or unreliable and therefore even though the outcome
may have been different, it does not matter
performance cannot be seen in hindsight but prejudice can
had the court held the other way, they would have had the exact sentencing hearing
that they already had; what other remedy would there be
An example of the test: Roe v. Flores-Ortega(s246): use Strickland test to determine if a
failure to file appeal without s consent was IAC under the Sixth
performance prong: held that there is a duty to consult the about an appeal when
either
(1) a rational defendant would want to appeal
(2) that this defendant reasonably demonstrated to counsel that he was interested in
appealing

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 if one of these is present and no appeal is followed then the has achieved the
performance prong
prejudice prong: defendant must demonstrate that there is a reasonable probability that,
but for counsels deficient failure to consult with him about an appeal, he would have
timely appealed
failure to pursue and appeal on behalf of a client is a serious attorney error
you might be required to show by some courts:
a reasonable probability that you would win the appeal
likelihood of success on a new trial (because it would be remanded)

C. Adjustments to Strickland test:

When not presume EAC
Prejudice Per Se: some cases will presume the prejudice prong, such as:
the government itself created the error
where prejudice is too hard to demonstrate
with an incomplete record, dont know what a counsel refrained from doing
Cronic(p1243): held had to show more than lack of time to prepare; not per se
prejudice
3 circumstances under the Cronic case where presume prejudice
complete denial of counsel
defense attorney entirely fails to subject the prosecutors case to adversarial
testing
where counsel is called upon to render assistance where even competent
counsel couldnt be effective (like being assigned the day before)
presume both performance and prejudice:
Solina(p1247): attorney didnt pass the bar
attorney admitted to bar by fraud
Not per se prejudice
Bell v. Cone(2002)(s256): held not per se prejudice where waved summation - no
plea for mercy, this is an enormous giving up of a right but was not quite per se
failure to call witnesses at penalty phase, another powerful incident supporting per
se prejudice but still was not

D. The Right to Conflict-free Representation(p1248-60, s268-80)

when an attorney represents two defendants then one is necessarily disadvantaged, A & B
are never equally culpable, one is always a leader and one is always a follower
so if accept this proposition (and either A or B will have a marginal disadvantage) then
if going to allow multiple representation why do it?
right to counsel of choice
may be greater group benefit even if one is individually hurt
if allowed then need a waiver, for a waiver of constitutional rights need a waiver that is vki
(voluntary, knowing, and intelligent)
Rule 44. Right to and assignment of counsel (s362, p1251)
(c) Joint representation.-trial judge must inquire into conflicts when more than one
judge has to ask defendants questions; this inquiry is difficult

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 it is hard for the judge, the doesnt want to answer any questions and waive
right against self incrimination
and judge will try the case so he shouldnt penetrate too far into the facts
could appoint independent counsel to each
the Sixth comprehends some right to counsel of choice
so can waive this right to conflict-free counsel sometimes
there are some conflicts of interest that are so serious they cant be waived
IAC where government penetrates into the defense (1260-62)
per se reversal where trial court failed to inquire whether there was a conflict in the face of
counsel raising the issue Holloway(p1249): no need to look at adverse effect
Cuyler v. Sullivan(p1251): rejected s claim that Holloway required inquiry into propriety
of joint representation even in the absence of s timely motion
if raise no conflict at trial then must show:
(1) there was an active/actual conflict of interests
(2) the conflict adversely affected his counsels performance
*after the Cuyler test you dont have to show that the Strickland test was also satisfied;
DONT NEED TO SHOW that adverse affect on performance undermines confidence
under Strickland
Burger v. Kemp(p1252): neither Cuyler prong achieved, partners separately
representing defendants wasnt ineffective counsel because of conflict of interests
Gambino(p1255): Cuyler test applied, no conflict of interests for same lawyer
representing person Gambino tried to blame for heroine sale
to prevail, Gambino had to show under Cuyler
some plausible strategy that might have been pursued
the alternative defense was inherently in conflict with the attorneys loyalties
to demonstrate a Sixth Amendment violation where trial court failed to inquire into
potential conflict of interest about which it knew or should have known still use Cuyler
standard Mickens v. Taylor(s268)
facts: lawyer for facing the death penalty had been appointed to represent the victim
of the killing in a separate case and trial judge knew or should have known and took no
steps to avoid conflict of interests
defendant wanted to use Holloway a per se reversal because the trial judge knew or
should have known about the potential conflict
so wants a rule of law that doesnt inquire into adverse effect because attorney
already testified that there was no adverse effect
held: must demonstrate that the conflict of interests adversely affected his counsels
performance
this was multiple representation in a single case, not sequential representation is
different so not under Holloway
US v. Fulton(p1259): cant waive some conflicts of interest, may be unwaivable if interests
are too strong, vki waiver not enough

E. Ineffective Assistance Without Fault on the Party of Defense Counsel(p1260-62)

may find violated right to EAC and not be the counsels fault at all Brooks, Herring(p1260)
inhibiting consultation was violation of right to EAC when was overnight but not when was
just for 15 minute recess Geders, Perry(p1261)

13
 interference in the attorney-client relationship is rarely a violation of the Sixth Weatherford,
Morrison, Levy (p1261-62)
Levy: is a violation if government sought information that is gained about the defense
strategy
argument for per se reversal when penetrating the counsel of the defense (acquiring
information about defense plans for trial) to punish the cops for listening to the
attorney

F. The Perjury Problem(p1262-69)

what choices are or should be available to lawyer whose client plans on committing perjury
assumptions: attorney knows the truth, will lie, cannot be dissuaded, that attorney
cannot withdraw from the case
(1) preferred rule is client takes stand and gives narrative and not refer to it in closing
could use free narrative solution to the lawyer knowing about the perjury
this avoids your participation in perjury
(2) disclose perjury to the court or threaten to disclose to the court
client not have claim if threaten to turn him into judge Nix: used Strickland test to
decide no IAC; no prejudice or performance
(3) just call the client and go on, let the adversary system deal with the problem; other
solutions arent effective
lawyers cannot knowingly allow perjury
if know client is guilty then can vigorously defend if can avoid introduction of
knowingly false evidence

G. Ineffectiveness and Systems of Appointed Counsel (p1269-73): didnt do this in class but urged
to read this; systems for defending the indigent are woefully under-funded so that
representation is destined to be inadequate
Bailey: inadequate funding of defense attorney by the state was held as violating EAC
Peart: held IAC for overworked defense attorney
death penalty cases are unfair to poor defendants who have under-funded lawyers who cant
do an adequate job defending
Strickland doesnt do enough to defend them

H. Limitations on the Right to Counsel of Choice (p1273-90)

Morris v. Slappy(p1273): no right to meaningful relationship with counsel; only right to
EAC under Sixth; cant choose anyone
Wheat v. US(1988)(p1273): district court refusing to permit counsel of choice didnt violate
Sixth right to counsel of choice; attempted waiver properly denied
great deference to district court decision because at the time made it is harder
could ask an old client to waive attorney-client privilege so attorney can defend another
person and question old client
Gotti(p1280): lawyer for Gotti was disqualified because he was a witness to criminal
conversations so his summation would be unsworn testimony; lawyer was house counsel to
the mafia - he represented various of the conspirators who have not personally retained him
- this was going to be used as evidence at trial

14
 Caplin & Drysdale(law firm in DC) v. US(p1281): there is no exemption and there is no
violation of Fifth or Sixth Amendments
the rule doesnt say anyone cant represent you, just takes the assets that are
forfeitable
no right to spend illegal money
no balance of powers issue, they get the counsel they can afford legally
holding: there is no right for A (the defendant) to use Bs (victims of crimes) money to
pay C (the attorney)
money becomes forfeitable at time of the crime - relation back feature of the forfeiture
statute (footnote 3, p1283)
Monsanto(p1288): no implied exception to forfeiture for attorneys fees
under forfeiture statute and DPC there must be a post-indictment/pretrial hearing on two
issues
probable cause with respect to the crime
whether the frozen assets are the fruits of that crime
no constitutional right to have a non-lawyer represent Turnbull(p1306)

I. Self-Representation(1290-1309)
The Constitutional Right(1290-1302)
Faretta v. California(p1290): defendant in a state criminal case has a constitutional right
to proceed pro se; Sixth includes right to defend oneself
must make informed decision to represent oneself
the court raised autonomy right over outcome reliability right
Godinez v. Moran(1993)(p1294): the rational understanding test used to determine if a
person can stand trial also defines the competency to waive right to counsel from
Gideon and proceed to trial
the waiving must be knowing and voluntary (vki) which makes the higher standard
for waiving but not higher standard for competence
Dusky: rational understanding test: degree of rational understanding and
rational as well as factual understanding of proceedings against him
defendant must be competent but the waiver must also be knowing and intelligent
are list of questions to ask and procedure to follow or could be reversed
also may assign counsel to stand by and take over is defendant cannot do it even if
objects to standby counsel
must be unequivocal waive of right to counsel
dont have to advise of right to proceed per se US v. Martin(p1298)
Adams v. Carroll(1989)(p1300): dissatisfaction with appointed counsel and was
unequivocal request to proceed per se that was not heeded so overturned guilty verdict
remedy: denial of Faretta right to self-representation is automatically reversed (a per se
reversal) McKaskle(p1301)
judges may try hard to avoid finding violation because of this
can insist on counsel the second time around, just must have right to proceed pro se
if choose to, doesnt have to proceed pro se
Limits on the Right of Self-Representation (1302-09)
timeliness: cannot invoke right at or just before trial Horton v. Dugger(1302)

15
 cannot disrupt court: if unprepared that is up to them Flewitt; but if cant abide by rules
of procedure then may deny self-representation
protection of witnesses: if traumatize witness may not be allowed to cross-examine
Maryland v. Craig; states interest in protecting witnesses can outweigh the right to self-
representation in just the cross-examination part
hybrid representation: may be allowed sometimes
no right to self-representation on appeal Martinez(p1307)
government interest in ensuring integrity and efficiency outweighs right of self-
representation
*once waive right to self-representation, defendant has absolute control over only: (1)
whether to waive jury trial; (2) whether to testify; (3) whether to plead guilty
the other decisions are up to the attorney
McKaskle(p1303): no violation of s rights in this case, the fights werent in presence of
jury and all fights resulted in doing what wanted
point of self-representation
autonomy - control over defense (or at least appearance of being in control)
underdog in front of jury

X. Discovery (p903-58; s177-85): Criminal Discovery: Unlike Civil Discovery(p903-04): no

constitutional right to discovery in a criminal case Weatherford(p904)

A. The Basic Issues(p905-09) :

Rule 16(d): allows court discretion in issuing protective or modifying orders or to make
such other order as is appropriate
arguments against discovery
it favors the accused too much Garsson(p905)
can get to the witnesses to create fear
allows to prepare perjured defense, can manipulate trial
arguments favoring discovery
gravity of liberty and reputation interests argue for liberal discovery rules
see ABA discovery standards (p908-09)

B. Discovery on Behalf of the Defendant(p909-22)

the paradigm fight is names and addresses of prosecution witnesses
witnesses are killed, and afraid even if unfounded, but intimidation of witnesses is the
bigger problem - so perjury is a problem
at trial the names will be revealed anyway but the risk decreases with the less time, after
testimony, it is less of a problem
government witnesses cannot be prohibited from talking to defense but the witness can do
whatever they want, no discovery for testimony
defense can approach the witness but it is hard to get them to talk
Rule 16 (s336, p912): tells what discovery is required to be provided by the prosecution
(a)(1)(A) defendants own written or recorded statements
Rule 16 not provide for co-defendant statements but ABA Standard does
(a)(1)(B) defendants prior record
(a)(1)(C) documents and tangible objects

16
 (a)(1)(D) reports examinations and tests
(a)(1)(E) expert witnesses
Jencks Act 18 USC 3500 and Rule 26.2 (p918): statements of other government
witnesses not disclosed before trial, provides discovery after the witness has testified on
direct
to discover, the statement must be - after witness testified, related to the direct
testimony, a limited amount, verbatim made or adopted by witness
use artful manipulation to get to overnight recess because only get statement
after direct examination
judge has great discretion to order discovery (p916-17)
can force government to say which loads they wont rely on
government had to identify in advance and with specificity what documents plan to use

C. The Prosecutors Constitutional Duty to Disclose(p922-47, s177-78)

Brady-Agurs-Bagley(p923): evidence on demand of the accused must be disclosed if it
would tend to exculpate him or reduce the penalty
The Brady Rule(p923): prosecution cant withhold evidence that is exculpatory (or
would reduce sentence) under DPC of Fifth
even if the attorney didnt know about the information, if it is attributable to the
government then it is still a due process violation Giglio(p923)
Agurs(p924): prosecutor failed to disclose criminal record of victim which would have
supported self-defense
held: the court reinstated the conviction, failure to tender criminal record to defense
didnt deprive of fair trial under Brady as guaranteed by the DPC of the Fifth
there is a prosecutorial duty to disclose information that is material
materiality test: does the omitted evidence establish a reasonable doubt that
didnt otherwise exist; look at the evidence cumulatively (not just the omitted
evidence)
stronger cases make it hard to establish materiality
majority accepts view that need to create reasonable doubt among the twelve
jurors
prosecution intentionally withholding evidence not increase likelihood of the
reversal - character of evidence, not prosecutor
United States v. Bagley(1985)(p928): refining the test of materiality
facts: despite a specific request to disclose deals with witnesses, the government
didnt disclose the signed contracts with the ATF to be paid for undercover work
held: reinstate the conviction
evidence that would impeach a government witness can be material but isnt
here; evidence wouldnt have affected the outcome of the trial so it wasnt
material
standard: evidence is material only if there is a reasonable probability that,
had the evidence been disclosed, there would have been a different result
a reasonable probability is a probability sufficient to undermine confidence
in the outcome

17
 if concerned with the evidence and not prosecutor and test is outcome oriented then the
relevance of specific request should be zero unless the failure to respond to a specific
request has affirmatively misled the then it may be germane if it was misleading
Kyles v. Whitley(1995)(p930): applying and reaffirming Brady Rule
four general points Souter made in Kyles which dissenters didnt disagree with
(1) a showing of materiality doesnt require a showing by a preponderance (p931)
(2) burden on not imply he must show an insufficiency of the evidence
doesnt have to show that remaining evidence is insufficient just need to show
that the undisclosed evidence could reasonable have put the whole case in a
different light
(3) after judging that the evidence is material (satisfies reasonable probability
test) therefore no need to litigate harmless error
(4) the non disclosed evidence should be considered as a whole, not solely item by
item, this is more powerful than one piece as a time
Wood v. Bartholemew(1995)(p934): suppressed evidence that would have been
inadmissible at trial
facts: prosecution not tell defense about failed polygraph test by witness
SC held: upheld conviction
evidence is inadmissible and nothing would have changed if this had been disclosed
just because it is inadmissible at trial doesnt mean that there can be no Brady
violation; there can be a Brady violation but in this case it is immaterial so
the facts were overwhelmingly against the so it wouldnt have affected the
outcome so it is not material
ex. cellmate saying he committed the crime is inadmissible (because is hearsay) but
may be a Brady violation because it can change the outcome of the trial because it leads
to admissible evidence
U.S. v. Boyd(p937): evidence to impeach a government witness may be material
facts: conduct by U.S. Attorneys Office abysmal; allowed drugs, sex, parties, phone use
to witnesses against gang
SC held: upheld new trial, not reach abuse of discretion
nature of exculpatory evidence suppressed: it is Brady material because it is
impeachment material
review in the Seventh Circuit was deferential
standard is whether trial judge abused discretion
court finds no abuse of discretion in decision that there was a reasonable probability
that the jury would have disbelieved the essential testimony of the prisoners if the
government had avoided impropriety
if there were de novo review the Seventh Circuit court probably overturns
Strickler v. Greene(1999)(p941): held: no new trial, not meet reasonable probability
requirement so not material
Sanchez v. U.S.(1995)(p944): held that a defendant can challenge the voluntariness of a
guilty plea with a Brady claim
reasonable probability test is whether defendant would have refused a plea and gone to
trial
United States v. Ruiz(2002)(s177): held: can waive constitutional right to disclosure of
impeachment information as well as information bearing on affirmative defenses

18
 still must disclose information going to factual innocence
is plea vki - hard to decide
Constitution not require disclosure of impeachment evidence before plea bargain
Mooney v. Holohan(p922): the Due Process Clause of the Fifth Amendment is violated if
government engages in deliberate deception of court and jury by the presentation of
testimony known to be perjured
Mooneys progeny: Pyle, Alcorta, Napue
reversal was required if false testimony could have affected the judgment of the jury -
not about outcome

D. Preservation of Evidence by Police: police do not have to preserve exculpatory evidence, only a
violation of due process if defendant can show bad faith on the part of the police
California v. Trombetta(p945): law enforcement officers not required to preserve breath
samples, not reverse conviction; dont always have a duty to preserve
to create a duty must argue that the evidence would have played a significant role in
defense; must show bad faith on behalf of the police
Arizona v. Youngblood(p945): conviction not reversed, no bad faith
facts: police failed to preserve a semen sample in child molestation case
held: upheld conviction, no bad faith so no denial of due process; failure to preserve
was at worst negligent (not intentional)
bad faith - turns on the polices knowledge of the exculpatory value of the evidence
at time it was lost or destroyed
Trombetta and Youngblood arent Brady cases because not about withheld material but
about destroyed material; the evidence no longer exists so dont know about exculpatory
value of the missing evidence
Brady asks about the outcome impact of material that is known to be exculpatory
dissent: Blackmun said police should preserve evidence where no comparable evidence
is available to the and reasonably should know the evidence has the potential to reveal
immutable characteristics of the criminal and exculpate

E. Discovery by the Prosecution(p947-58)

Sanctions for nondisclosure (p951)
if not turn over mandated discovery then: Taylor(p951) and Lucas(p951): the Sixth
Amendment right to counsel does not prohibit courts from sanctioning s by
disallowing evidence that is not disclosed where required
so if dont give alibi witnesses then preclude witnesses from testifying
cant preclude from testifying, that is against Fifth Amendment
Williams v. Florida(1970)(p947): upheld Floridas notice of alibi statute
disposed of some Fifth and Fourteenth concerns in discovery by the prosecution
(violated due process and self-incrimination)
fourteenth: no due process violation because still a fair trial because are reciprocal
duties
fifth: no C from CTSI: no compulsion because:
would make the disclosure anyway in the middle of the trial (could at that
point take a break from the trial; no constitutional prohibition of this break; so
same as disclosing before case)

19
 is not being compelled to put on an alibi defense at all (answers on cross-
examination are compelled in the same way this is compulsion so there really
isnt compulsion)
no pretrial statement of the was introduced at trial
CTSI - sums up fifth amendment issues - it prevents Compelled Testimonial Self-
Incrimination; the issue in Williams is about Compelled
Schmerber: about T - testimonial; SC held that to take a blood sample against suspects
will not violate Fifth; was compulsion, was self-incriminatory, but court ruled not
Testimonial so not a violation - testimonial is only about communicative testimony
Compulsion: Miranda is most famous Compulsion case; held: taking an incriminating
statement from a in custody would violate the Fifth (would be CTSI unless the four
Miranda warnings were given)
Wardius v. Oregon(1973)(p950): reciprocality requirement; court struck down notice of
alibi provision that wasnt reciprocal
Rule 16(b): federal discovery rule covering the defense; requires the request similar
information first
the ABA would just allow discovery without request
U.S. v. Nobles(1975)(p952): discovery at trial; this case is about the pretrial statements of
government witnesses
held: the court can compel discovery of the investigators report to cross-examine
Rule 16 only applies to pretrial discovery, not trial discovery
no Fifth Amendment right against self-incrimination problem - not self-incrimination,
no S from CTSI
didnt make report, nor did the portion to be disclosed contain any information
flowing from the to the investigator so it didnt have any s communications
Williams is about discover before trial and Nobles is about discovery in the middle of
the trial
work-product doctrine - court observes (p955 column 1) it applies to criminal as well as
civil cases
involves material prepared by and for the attorney for the trial
but here the doctrine is waived or would have been waived wrt the subject matter of
the investigator
by making testimonial use of the work-product the doctrine is waived and open up
to a response
(p956) court notes that the amount of disclosure to be required is the amount that the
investigator would use to discredit the government eye witnesses (just enough to
prevent the use of the work product doctrine as a sword by the defense)
Hickman (work product) is a limitation of pretrial discovery of non-evidentiary matter
cant be extended wholesale to prevent production of evidentiary matter
if the judge can force prosecution to disclose for its witnesses, there is no reason
why it wouldnt apply to the defense
prior to trial each party can prepare and seek witness statements on their own but at
trial a prior inconsistent statement is unique and of great evidentiary value and thus
must be disclosed at order of the trial judge
Jencks Act as compared to Rule 26.2 and Red.R.Evid. 612
(p956-57): make a chart

20
 vertical axis 3 boxes: Jencks act, Rule 26.2, fed rule evid 612
fill in which statements must be disclosed
next vertical column: when must they be disclosed

XI. Guilty Pleas and Bargaining(p959-96)(s179-84)

A. The General Issues(p959-73)

the overwhelming percentage of convictions are by plea of guilty (in some jurisdictions
>90%)
in favor of plea bargaining (p961): a market is better than none, better for everyone, going
to trial forces risk averse to trial, saves time, can prosecute more cases
without plea bargaining this fraction would be very low, plea bargaining raises the
numerator (this is most powerful argument)
convictions/reported crimes = important formula for crime
if numerator is too small, the system isnt working, not safe
opposed (p962): gives innocent defendants the choice to plead guilty which is unacceptable
(they do also get convicted at trial)
the private choice harms a societal interest by undermining confidence in guilt beyond a
reasonable doubt
plea bargaining disadvantages the indigent - their lawyers are underpaid and thus their
weaknesses and shortcuts are hidden without the trial where they would be exposed
more trials wouldnt harm indigents but would expose inadequate representation
does plea bargaining system impermissibly punish those who elect trial (Sixth right);
acceptance of responsibility can lead to a lighter sentence, but is that unconstitutional
White(p966): not unconstitutional to bargain for lighter sentence, contrite defendant not
mean that penalize the ones who choose to stand trial
this is the state of the law
Scott(p965): cant attribute the longer sentence to punishing for going to trial
(p966): effect of Federal Sentencing Guidelines on plea bargaining
have increased the power of prosecutors/have curtailed the power of judges
choose what crime to charge with before bring charges so get help earlier and
promise to shape indictment
after indictment, there is less discretion
judge is then bound by the charge
should prosecutors have the power to make a charge at or below the most serious
conduct level
argument for not letting them go below:
treat criminals equally
know what to expect when commit crime
argument for letting them go below the most serious conduct level: are many
variables (prior record, relative culpability)
Reno Amendment allows this - more individualized attention and more
discretion
shouldnt even bring this case at all if not think can convict; 40% is not enough; if 60%
chance of conviction is that enough; it is questionable
(p972) Hayes: court upheld life sentence for forged check as habitual criminal

21
 the power of the prosecutor in this case is created by a penalty structure that has great
disparities among penalties - this power is too big, goes beyond discretion
inverted sentencing:
if you give leniency to mastermind of criminal conspiracy and then rely on their
testimony to go after others then the jury will react badly
may not believe the testimony of the mastermind

B. Bargaining Distinguished from Plea Procedure

Fed.R.Crim.P. 11(h) and Rule 52(a): both about harmless error
U.S. v. Vonn(s184): a who doesnt object to an error under Rule 11 has the burden of
showing plain error just as Rule 52 says
also held: that when analyzing plain error the court can look at information outside of
the plea proceeding
courts distinguished the bargaining from the procedures surrounding acceptance of the
guilty plea Hayes(p973)
bargaining is unregulated
guilty plea acceptance has become formal to ensure vki plea Livorsi(p973)

C. The Requirements for a Record

The Boykin Requirements: the plea must be voluntary and knowing because are giving up a
right, otherwise is due process violation and void
McCarthy(p973): held: court voided guilty plea based on Rule 11
lower judge didnt ask if understood charges or about voluntariness
Boykin v. Alabama(p973): held: overturned death sentences because didnt show plea was
voluntary and knowing
dont always need explicit record, just a presumption of invalidity of plea that can be
overcome Henry, Colston, Ferguson
Parke v. Raley(p974): held: no tension between law and Boykin, guilty plea can be used to
enhance future sentences in other cases
Custis v. U.S.(p975): held: cant collaterally attack state plea in federal sentencing hearing
unless violated Gideon (no counsel)

D. Voluntary, Knowing, and Intelligent

wired plea is constitutional (wired = connected/package)
pressure because was husband and wife pleading guilty Pollard(p976), court held he
was not coerced, not involuntary
Caro(p977): vacated guilty plea; must inform judge if it is a wired plea (package deal) so he
can make a more careful examination to ensure voluntariness
court focuses on what the judge knew - if judge knew the plea was part of the package he
would have done a more penetrating analysis of the situation
Colorado v. Connoly: the coercive activity must be that of the government
remanded the case back to the district court on whether or not he was mentally
competent; this is k and i not v
mentally troubled man walks into police station and confesses because God said to
Rutledge(read this paragraph - in confessions section)

22
 Posner sees the tipping point of the law as being permissible to play upon the normal
fears of the defendant but not to magnify them to the point where rational choice is
taken away
Henderson v. Morgan(p977): court held plea involuntary; even if would have changed
nothing, the must know the nature and crucial elements of the offense
Knowing:
under current state of the law what must the judge be sure that the knows to satisfy
the k (knowing) element
all elements of the crime
maximum penalty: must know about the sentence for vki plea Goins(p978)
something else
not need to know and still uphold the plea
not need know about collateral consequences (p979) such as deportation
court told elements of more severe crime but not the crime pleaded guilty to
and still upheld plea Wildes(p978)
United States v. Ruiz(2002)(s179): applying the Brady rule (again on n41)
held: can waive constitutional right to disclosure of impeachment information as
well as information bearing on affirmative defenses
saves money and time and avoids giving out valuable information
Constitution not require disclosure of impeachment evidence before plea bargain
no authority to require this disclosure
still must disclose information going to factual innocence
no general right to discovery in a criminal case
is plea vki - hard to decide; Ake(p182) 3 part test under due process clause to figure
out what protections must be made available
nature of private interest at stake
value of additional safeguard
adverse impact of adding that to the government
court said not much added value for this protection and it could hurt the government
greatly
Colorado v. Spring: arrested in NJ for selling firearms; given Miranda and then
confesses to murder in CO
it was vki even though not warned for this crime
k has come to mean knowledge of the rights which you are waiving by speaking to
the cops (knowledge of the right to remain silent, have attorney) so Miranda
warning satisfies k
i is satisfied by having the mental competence to understand the Miranda warning
after this the courts have been parsimonious in laying out the k requirement
it is presumed that the defendant is informed about the charge and its elements
Oppel(p978)
a validly cannot plead guilty to something that isnt a crime (legislature writes the
crime codes so judicial cant make it a crime)
this is an element of k - he could come back and allege he didnt know it wasnt a
crime after pleading guilty
pleas are allowed which are not supported by the facts
judge could reject plea during plea allocution Rule 11

23
 or accused would have to perjure himself
many criminals would be willing to plea guilty to a crime didnt commit if just get
good sentence
many ADAs and judges allow this knowingly
so when look at Rule 11 and way allocutions should be done (if done properly) this
would never happen but in high volume courts, it isnt done correctly - the details
get blurred
Blackledge v. Allison(p982): had a right to have claim heard; shouldnt have been a secret
promise for lower sentence or lie,
if a plea is properly taken under Rule 11 then this should never happen, just follow
script
if judge has any doubt then can ask counsel
this makes the transcript bulletproof so this case should never arise where allocution
is properly taken
Santobello v. NY(p990): prosecution breach of plea agreement; held: new sentencing
facts: prosecutor promised to make no recommendation in return for the plea and then
new prosecutor did make a recommendation not knowing about plea bargain
wanted to be able to withdraw the plea, instead he got sentencing in front of another
judge
even inadvertent breach is unacceptable
plea agreement is a contract under contract principles
there is judge shopping and probably didnt want to be sentenced by judge #2 so
he was mad and might lose in the end
this case is about sentencing shopping
Bousley v. US(p979): pleading guilty to something not a crime; held: gets a hearing on
involuntary plea claim if can overcome procedural default (why not appeal directly)
if does overcome procedural default then might be able to establish that his plea was
constitutionally invalid by showing that didnt understand the elements of the crime
Brady(p979): Brady was advised by competent counsel, was made aware of charge but in
Bousley he was unaware of true nature of charges; why isnt Brady a case of vki (especially
k) on the true actual penalty (this isnt really correct)
court differentiated between elements and consequences (sentence) - this is an
incomplete answer
Libretti(p988): Rule 11(f) only apply to plea of guilty not forfeiture
Godinez(p981): held: rational understanding test defines competency to stand trial (also
defines competency to plead guilty and waive right to counsel)
standing trial is just as complex as pleading guilty
use Dusky standard: is competent if can consult with his lawyer with a reasonable
degree of rational understanding and has a rational as well as factual understanding
of the proceedings against him
not a higher standard for competency but is a higher standard because plea must also be
a voluntary and knowing waive of constitutional rights

E. Regulating Guilty Pleas Under Federal Rule 11(p982-86)

Rule 11. Pleas
11(e)(4): judge not have to accept bargain between and

24
 if not accept bargain can sometimes withdraw the plea of guilty depending on what
type of plea - allowed for (A) or (C) to withdraw but not for (B)
Rule 11(e)(1)(A,B,C): 3 agreements prosecution and defense can make
U.S. v. Bennett(p985): court found agreement was a type B so it was not bound by the
recommendation and did not allow the plea to be revoked
Rule 11(e)(1)(A,B,C): if it had been an A or C then the court could reject the
agreement but that only sends the parties back to bargain not keep plea
for B, the must know that it is not binding on the court
Rule 11(e) judge cant participate in the negotiation (p986) (they do in state court), he is
too powerful and may coerce a plea and may make him impartial
judge must be careful not to participate inadvertently Miles, Daigle
U.S. v. Bachynsky(p983): held: was harmless error and upheld plea agreement
Rule 11(h) harmless error provision can overcome the failure to follow plea rules as in
11(c)(1) - must affect the substantial rights of the defendant
was only a partial violation of a core concern
entire sentences with supervised release was less than the maximum stated so harmless
error
U.S. v. Bounds(p984): held: reversed the conviction and vacated the sentence to plead
again, not harmless error because total sentence including supervised release went over the
maximum explained

F. Claims of Innocence(p986-87): can accept plea of guilty even if not admit guilty if it is
reasonable for a person in his position to plead guilty
Alford(p986): upheld guilty plea even though claimed to be innocent because of strong
evidence and voluntariness so no constitutional error
if strong factual basis then can overcome vki issue

G. Factual Basis for Pleas(p987-88): Rule 11(f): requires judge to determine a factual basis for the
plea
Libretti v. U.S.(p988): held: Rule 11(f) is not applicable to forfeiture agreements

H. The Finality of Guilty Pleas(p988-96): withdrawal of pleas

Rule 32(e): can withdraw plea before sentencing with fair and just reason
this is not easy to achieve Abreu, Doyle(p989) - cant just decide want to take it back;
reevaluation of strength of case is not enough
just allowing the withdrawal would demean the admission of factual guilt
U.S. v. Hyde(p989): held: reverse and remand to determine if was a fair and just
reason for withdrawal
Rule 32(e): much harder to withdraw plea after sentencing, must do it on direct appeal
breach of plea agreement
government breached was not to make recommendations but emphasized seriousness at
the trial Hayes(p991)
government breached where recommended sentence but also introduced victim impact
statement Johnson (p991)
no breach when government said recommending sentence reluctantly Benchimol(p991)
not need to be an enthusiastic recommendation unless explicitly required Johnson(p992)

25
 Ricketts v. Adamson(p993): held: Double Jeopardy Clause not bar state from filing
capital charges when breaches agreement; special circumstances arose making the
agreement void
The Brady Trilogy(p994): SC promoted approach that a vki guilty plea is a waiver of all
claims (including collateral attack and appeal)
Brady, Parker, McMann, Tollett: not allowed to collaterally attack vki guilty plea
BUT are some collateral attacks allowed
Perry(p995): allowed collateral attack of guilty plea where claim was prosecutorial
abuse
Menna(p995): allowed collateral attack where challenging plea as a violation of
double jeopardy rights
Broce(p995): no collateral attack allowed to challenge violation of right against double
jeopardy where would require in depth factual inquiry and would contradict their pleas
conditional pleas of guilt
Rule 11(a)(2): allows conditional plea
ex. pleas guilty if can challenge denial of suppression of evidence and if win can
withdraw plea
need assent of judge and government
good: is efficient to litigate a suppression without going to trial
bad: in pleading guilty is admitting to factual guilt so it is an unseemly manipulation
by a factually guilty , just because cant prove it, the is still guilty
see footnote 18 - Burns: to allow conditional plea
claim must be reviewable without full trial record
must be dispositive of the case
Burns is about efficiency: conditional plea would be inefficient - column A is CPG,
column B doesnt allow it so there is a full trial and dont need a new trial so not
have to remand and have another appeal
so dont allow conditional pleas of guilty absolutely
A B
1 Motion to suppress is Motion Denied
denied
2 CPG (conditional plea of Trial
guilty)
3 Appeal Reversed Appeal Reversed
4 Trial Trial
5 Appeal Appeal
in crowded courts, prosecutors were forced to induce guilty pleas by giving bargains to
criminals
federal day: one day a week, a lot of low level drug dealers were prosecuted in the
federal system, so more convictions and higher sentences
the guilty plea system has harms on both sides, hurts the public and helps in addition
to hurting
if have capacity to try every case then the bargains dont give away as much
the concomitant with the reduction of felonies allows DAs to not reduce sentences

XII. Trial Proof(p1037-73, s186-241)

26
A. Proof Beyond a Reasonable Doubt Generally(p1037-39)
In re Winship(p1037): held: the Due Process Clause requires the government to prove
every element of a criminal case beyond a reasonable doubt
more important to keep out innocent man than to set free guilty

B. Reasonable Doubt and Jury Instructions(p1039-43): bad instruction never harmless error
Taylor v. Kentucky(p1039): held: reversed conviction because of no instruction of
defendant being presumed innocent
Kentucky v. Whorton(p1040): held: presumption of innocence instruction not
constitutionally required in every case; must see totality of circumstances including jury
instructions, counsel arguments, weight of evidence - to determine if was a constitutionally
fair trial
if purpose of presumed innocent statement is served by other words then it is not
necessary to use the term presumed innocent
if give clear explanation of brd then not need presumed innocent instruction
reasonable doubt instructions Cage v. Louisiana(p1040), Victor v. Nebraska(p1040)
Cage v. Louisiana(p1040): held: instruction was constitutionally defective
the defect was that the jury was told to have grave uncertainty but jurors doubt
need not rise to this level to be reasonable
Cage is a seminal case in illustrating a number of points
the enormous care with which reasonable doubt instructions get scrutinized
if erroneous instruction on reasonable doubt, can never be harmless error, the
instruction is erroneous Sullivan(p1040 footnote 15)
the jury measured the facts with the wrong yard stick, it cannot be harmless
because dont know what the jury would have done if had proper instruction
Victor v. Nebraska(p1040) and Sandoval v. California
both cases had arguably erroneous brd instruction and s urged reversal based on
Cage because cant be harmless error but in neither case was there a reversal
held: instruction satisfied constitutional requirement when see charge as a whole,
instruction when viewed in the context of the whole charge to the jury, the jury
didnt apply the wrong yard stick
attorney should offer reasonable doubt instruction that has not been accepted by your
circuit so have an appeal; must object to refusal to give charge; must give specific objection
to have an easier standard (dont want plain error, want objected to standard)
reasonable doubt - how to define the proper level of seriousness to a jury
see Ginsberg instruction on (p1042 bottom to top)

C. The Scope of the Reasonable Doubt Requirement(p1043-61)

Winship held that prosecution must prove every element brd
if something is an element of the crime then the government must prove it brd
all are fights about whether the legislature can redefine the law and shift the burden to
the
Mullaney v. Wilbur(p1043): held: Due Process Clause requires prosecution to prove no heat
of passion for homicide; impermissible burden shifting

27
 state: this is not a violation because not about guilt just about extent of punishment and
culpability
Patterson v. New York(p1045): upheld NY statute requiring to prove extreme emotional
disturbance by a preponderance of the evidence (after the prosecutor proved an intentional
homicide beyond a reasonable doubt) to reduce to manslaughter
argues: this should be an element of the crime and proven by the prosecution brd but
the statute made prove extreme emotional disturbance
historically the law had seen this as a mitigating factor
if assume the legislature can abolish the distinction completely between the two
murder charges then why not be able to reallocate the burden to the of mitigating
to the lower charge by presenting the affirmative defense
Martin v. Ohio(p1048): held: SC sustained Ohio rule placing the burden of persuasion on
self-defense on the defendant; this is an affirmative defense that the must prove
this is a more appealing argument against burden shifting than Mullaney
Flores v. Minnesota(p1049): held: could place burden of proof on the to prove
intoxication by preponderance to negate premeditation
Montana v. Egelhoff(p1049): court upheld a statute that prohibited the defendant from
offering evidence of intoxication as a defense to the mental state necessary to commit
homicide
plurality made exclusionary rule argument that the legislature could do this
at common law this evidence was not allowed in so this is within the rights of
Montana to exclude this evidence
nothing in the Due Process Clause that prevented this
states may make such a rule unless offends some fundamental principle of justice
and this was done in history and currently so it probably doesnt offend
concurrence(p1050): offers another legal rationale
the state redefined mens rea to eliminate the exculpatory value of voluntary
intoxication and this doesnt offend a fundamental principle of justice relying on
common law tradition and current laws; this arrives at same answer as plurality on a
different path
dissent: state could have redefined mens rea but that isnt what they did
big issues: what is an element; when can it be redefined; when can we shift burdens; what
violates Winship
McMillan v. Pennsylvania(p1050): preponderance of the evidence at sentencing
held: upheld treating possession of a firearm as a sentencing factor instead of element of
crime and could just prove by preponderance of the evidence
is a Winship issue because judge is supposed to decide if the aggravating factor by
only a preponderance; held all 3 of the below:
this wasnt charged at the indictment
the judge finds it (no jury)
not brd
used Patterson instead of Mullaney
McMillan should be juxtaposed to Apprendi
same thing held for amount of drugs

D. Proof of Alternative Means of Committing a Single Crime(p1061-65, s186-241)

28
 Apprendi limited both McMillan and Almendarez-Torres
Almendarez-Torres(p1052): held: legislature had the constitutional authority to treat
recidivism as a sentencing factor rather than as an element of the crime
long standing tradition of allowing recidivism as sentencing not element
this is important because some justices see this as completely answering the claim
as to the Due Process Clause
states still do it today also; not want to find statute unconstitutional because it is
used in many states and long tradition
because the first case it was already found brd (or plea of guilty) and other elements
that want to secure under Winship
Apprendi had left this open, it said except for recidivism, cant raise maximum
sentence
Jones v. U.S.(p1055): held: reversed increased sentence which proved injury by
preponderance of the evidence; there are 3 distinct offenses, each an element of the crime to
be proven at trial beyond a reasonable doubt; this was an element of the crime, not a
sentencing factor
court avoid constitutional issues of jury trial right of Sixth Amendment
must all facts which enhance a sentence significantly be found brd by a jury:
Jones avoids issue by just interpreting the statute
(p1059 column 2) jury not have to find everything, but diminishment of jurys
significance would raise Sixth Amendment issues - court avoids the issue
Apprendi v. New Jersey(s186): court extended Jones and limited McMillan to its facts, and
established a broad principle that prohibits the state and federal governments from using
sentence enhancements to increase a maximum sentence
offends constitutional principles of Due Process Clause and right to jury trial
Due Process Clause violated Winship because not brd, removes jury from
determination of a fact that exposes the to a penalty exceeding the maximum
held: cant raise maximum sentence beyond that which could be imposed under the
statute if not charged in indictment and therefore is charged with that specific fact and
jury makes a finding on that fact
a fact that would increase the charge creates a new crime and must charge the with
that crime (s195 column 2)
Apprendi not restrict judicial discretion in:
if not go beyond sentence maximum then that is okay under Apprendi
even if found just by preponderance of evidence and not by jury
until Apprendi, one would have thought that Patterson would have trumped Mullaney,
(p193 column 1)
Scalia/Thomas(s198-99): (s201 column 1) would have overruled Almendarez-Torres
and McMillan - every fact is an element and must be heard by the jury
if the statute isnt clear and so give it the reading that saves its constitutionality and
so jury should find brd
Harris v. U.S.(s213): Apprendi and statutory minimums; court considers implications of
Apprendi
McMillan is still good law
upheld raising of mandatory minimum differently from raising the statutory maximum

29
 dissent (s225): Thomas says that not care about label that legislature puts on it,
brandishing must be an element of a separate offense
majority answers: (p219 column 2) these facts though stigmatizing and punitive
have been the traditional domain of judges; placing this discretion with the judge
doesnt raise competition between judge and jury
how distinguish Apprendi from McMillan to uphold McMillan
statute in question didnt increase maximum penalty
jurys verdict authorized the judge to impose any sentence within the statutory limits
even without any special fact finding by the judge
if this is the proposition then: it is independent of indeterminate sentencing
schemes so why see determinate schemes as anything different than just
channeling the discretion
difference between element and alternate means of committing a crime (s215): part II is
an exercise of statutory construction (even though Thomas had said that it is a
constitutional question not statutory)
4 step process of statutory construction (p215 column 1 - 217 column 1)
(1) the look of the statute - where are the provisions and where are the elements
not dispositive and can be defeated by the content as in Jones where content
was more important than structure
(2) in Harris there was no tradition of treating as element as there was in Jones
(3) (p216 columns 1-2) analysis of content might not be dispositive and it should
still be for the jury if under the statute it had altered the defendants punishment
there were steeply higher penalties
discretion of judges in Harris was limited and did not present same scenario
of steeply higher penalties as were present in Jones
so it wasnt a new statute as was found in Jones
(4) doctrine of constitutional avoidance - a further weight on the scale
each step can overcome the previous
Ring v. Arizona(s229): the logic of Apprendi extends to the death penalty; last point on this
5 case sequence - (s235 column 2)
facts: aggravating factors in a capital case
Arizona used argument from plurality in Harris - said sentence of death was authorized
by jurys verdict so judge can choose between death or life imprisonment
judicial decision making is a better way of preventing the arbitrary application of
the death penalty
court replied: The Sixth Amendment jury trial right doesnt turn on the relative
rationality, fairness, or efficiency of potential factfinders. (s235)
the superiority of judicial factfinding is far from evident (s236)
but this argument failed because the jury had not found the controlling fact (the
aggravating factor)
Patterson, McMillan, Almendarez-Torrez, Harrison - not all facts must be found by jury
brd, so are we moving toward the jury having to find less and away from Apprendi, Jones
there is some notion of when too large a notion of severity is being assigned to judge
instead of jury then may be in danger of violating Winship
Schad v. Arizona(p1061): permit jurors to reach one verdict with different alternative
findings

30
 facts: indictment charged felony murder and premeditated murder
held: upheld the alternative theories as constitutional
these are disparate crimes with different levels of moral culpability but not so
disparate as to dilute proof beyond a reasonable doubt of all the elements
compare to Richardson
were all jurors really convinced beyond a reasonable doubt of the same elements or
each juror use different element
Richardson v. U.S.(p1063): distinction between means and elements
cited Schad as allowing several possible means to make up a particular element
issue: did he commit the same 3 or any 3 crimes; are the violations means or elements
held: each crime was an element not means, so must agree on the specific offenses
court in this case construed the statute to require phrase series of violations as
demanding unanimity of which the underlying offenses are because
under Due Process Clause we need
need specificity and notice to the enabling to defend
forcing jury to engage deeper on the facts
Scalia concurrence from Schad - not allow conviction of man who assaulted on
Tuesday and Wednesday

XIII. Jury Trial (p1073-1169, s241-43)

A. The Fundamental Right (p1073-80)

Sixth Amendment: accused shall enjoy right of speedy and public trial by an impartial
jury where crime was committed
Sixth grants impartiality and cross-sectionality of jury (not peers)
Article III, Section 2, Clause 3: (p1073): get jury trial where crime was committed
Duncan v. Louisiana(p1073): held: constitutional right to jury trial was violated
Fourteenth Amendment guarantees jury trial in any case where the Sixth
Amendment would provide it in federal court

B. What the Jury Decides (p1080-81, s241-42)

Gaudin(p1080): held: question of materiality is for the jury, it is an element, judge cannot
direct the jury to materiality so Winship rights were violated
read (s286-88) Cotton case - and pay attention to citing Johnson v. U.S.
can it be harmless error or plain error when judge withdraws element from jury

C. Requisite Features of the Jury (p1081-92)

size and unanimity
size: jury size can be as little as 6 (5 is impermissible)
Williams v. Florida(p1081): held: upheld 6 person jury, discusses why jury is so
important and why 6 is permissible
Ballew v. Georgia(p1084): held: no jury allowed smaller than 6
less effective group deliberation, could have inconsistent results, odds of
presence of minority viewpoint declines, better chance of incorrect verdict
unanimity:

31
 Apodaca v. Oregon(p1087): held: upheld non unanimous verdicts for states, Sixth
not include unanimity requirement for states
brd is separate from unanimity, brd is not eroded by a 10-2 guilty verdict - the 10
guilty votes found guilt brd so that is the brd requirement
dissent arguments: departure from tradition, dilutes deliberative quality - only
need to convince a smaller amount and not all need to be convinced, not as great
intensity of belief Winship
FRCP require unanimity but state juries dont
incorporation doctrine - must federal and state be consistent
14th amendment makes the 6th amendment binding on the states
and still federal court not allow it because seems to be unconstitutional

D. Jury Selection and Composition (p1092-1140)

Fair Cross Section; Voir Dire (p1092-1100)
(p1093) - two separate rights
fair cross section of 6th amendment
equal protection clause
Taylor v. Louisiana(p1095): held: he gets new trial because 6th amendment right to fair
cross section was violated
has standing from 6th amendment because he has a right to a fair cross section
verdict was not unfair - but the cross section requirement is not about reliability of
outcome
women are different from men which makes jury deliberations less valuable
women are numerous and distinctive
Taylor problem will never arise again because will choose multiple broad sources to
avoid systemic underrepresentation
peremptory challenges are not allowed on the basis of race, gender, or ethnicity
violates equal protection clause
ex. which are cognizable for Sixth Amendment purposes - native Americans, lawyers,
Asians, Italian Americans
for which of these groups would systematic under-representation of the kind present
in Taylor would the 6th amendment cross sectionality requirement be violated
we have to sharpen up the test Taylor is not enough, look at Duren and the factors,
what makes a prima facia case
Duren v. Missouri(p1097): held: to show a prima facie violation of the fair cross-section
requirement, a defendant must show three things:
(1) the group excluded from the jury array is a distinctive group within the
community: use Fletcher test
(2) underrepresentation: the representation of the group in the venire from which
jurors are selected is not fair and reasonable in relation to the number of such
persons in the community
(3) the underrepresentation is the result of a systematic exclusion of the group in
the jury selection process
can avoid (2) and (3) by just using a proper jury pool (DMV)
if satisfies this then state must prove that the inclusion of the underrepresented group
would be incompatible with a significant state interest

32
 Thiel: forbade the systematic exclusion of daily wage earners from a federal jury
relied on federal supervisory power, not Sixth Amendment
Fletcher(p1098): test for whether a group is distinctive under Duren must show:
(1) that the group is defined and limited by some factor (has definite composition such
as race or sex)
(2) that a common thread or basic similarity in attitude, ideas, or experience runs
through the group, and
(3) that there is a community of interests among members of the group such that the
groups interest cannot be adequately represented if the group is excluded from the jury
selection process
held college students not a distinctive group
no limiting factor, anyone can be a college student
no common thread
under Duren should lawyers be a cogniziable group for Sixth Amendment purposes, is it
a distinctive group? (use distinctive group test from Fletcher)
passes (1) and maybe (2) but less likely (3)
are Asians or Europeans a cognizable group and therefore violation of Sixth Amendment if
excluded
Italian Americans arent cognizable for Batson purposes (purposeful discrimination for
exclusion from jury); Blacks were cognizable
if women are cognizable and Asians cognizable, are man asian Americans cognizable,
or protestant asian Americans
hard to answer this - statutory rules liberate us from having to do this in every case -
if cross sectionality was applicable to petit jury (if Holland came out other way)
then there would be a big problem, too small a group (12 people) and every
exclusion would cause a problem
Batson(p1121) allows us to deal with this using the equal protection clause instead
of the cross sectionality requirement from the Sixth Amendment
if use proper source for the jury pool then can avoid challenges (p1099)
Jackman(p1100): held: voter lists failed to provide fair cross section in the jury pool
Voir Dire examination of prospective jurors: besides fair cross section, the actual jury must
be impartial and fairly chosen
voir dire - to speak the truth; potential jurors subject to 2 kinds of challenges
unlimited number of challenges for cause based on a narrowly specified, provable
and legally cognizable basis of partiality
specified number of peremptory challenges which could be used for any reason
(until Batson and it progeny, now limited by equal protection clause)
federal court - judges usually ask the questions, jury selection goes much faster
judges dont have to ask all questions that lawyers request, use these to appeal
questions which as a matter of constitutional law must be asked
race
Ham v. South Carolina(p1101): held: Due Process required the judge to satisfy
the s request to ask about racial prejudices
Due Process Clause of the Fourteenth Amendment is to insure essential
demands of fairness

33
 the SC found constitutional error in refusal to ask question about racial
prejudice
the court was not clear as to when it is a requirement, Ristaino updated Ham
Ristaino v. Ross(p1102): distinguished Ham
facts: black man assaulted white security guard
held: reversed grant of habeas corpus, reinstated conviction; no due process
violation when not asking requested racial prejudice questions
- distinguished from Ham by:
i. mere fact of white victim and black criminal not strong enough to
require racial questions
ii. not a civil rights case as Ham was
iii. racial issues were inextricably bound up in Ham
- used supervisory power instead of Due Process as in Ham
- (p1103 footnote a) - wiser court should ask the questions if it is requested
by the and could be an issue
Rosales-Lopez v. U.S.(p1104): limits on mandatory inquiry into race
facts: smuggles immigrants into US
held: no reversible error in refusal to voir dire prospective jurors on racial
prejudices
- supervisory power does require in some cases but not this one
- supervisory power preference is rising in federal courts
- usually best to allow to have the inquiry
- under supervisory power if and victim different races then should ask
the racial questions
SO courts are moving toward using supervisory power instead of
constitutional due process fourteenth amendment
Turner v. Murray(p1104): held: death sentence invalid where trial judge refused
s request to voir dire on racial prejudice
penalty phase of death case is much stricter on requiring questions
publicity
could change venue to avoid some biases from publicity
how handle if everyone heard about the case - MuMin is about this
must ask jurors if exposed to pretrial publicity
but not want other jurors to hear from each other if asking content based
questions, so might need 1 on 1 questioning, could do this but it would take
longer
hardest problem is - are we equipped to evaluate the answers to this
questions: given all you saw, can you still be impartial?
- how well equipped are judges to evaluate the answers
MuMin v. Virginia(p1105): voir dire and the need to screen for prejudicial
pretrial publicity
facts: jurors were questioned in panels of 4 and not asked content questions
- assumed silence meant they could remain fair - dissent troubled by this
held: no constitutional error for not questioning
- state trial judge not obliged to question jurors individually about the
contents of pretrial publicity to which they might have been exposed

34
 - SC has more power over federal trials because of the supervisory power
of federal courts over federal trials so SC was deferential to the state
court, regulation of voir dire under constitution is less rigorous
OConnor concurrence - trial court could have done more but it wasnt a
constitutional violation to not ask questions about what they heard (content
questions)
death penalty
Morgan v. Illinois(p1106): held: reversed conviction because court didnt ask
one question about whether would impose death penalty
general questioning about death penalty was insufficient to satisfy the Due
Process Clause
prosecutor got question whether any juror would automatically vote against
death penalty but declined s question - so court worried about the
imbalance
dissent: court departed from deferential standard, trial not fundamentally
unfair
3 situations where voir dire required in federal courts (p1107): racial biases, local
community feelings, police testimony important
jury consultants look for extreme jurors to support their side, to find them
some people make up minds quickly, others must hear all details
some people make up mind and not change, are you that

E. Challenging for Cause (p1109-1117): statute defines

typical statute permits a challenge where juror is of unsound mind, lacks qualifications
required by law, is related to a party, has served in a related case or on the grand jury, or is
unable or unwilling to hear the case at issue fairly or impartially
jurors who cannot be excused for cause: Witherspoon, Adams, Lockhart, Buchanan,
Wainwright, Gray, Ross, Morgan
Witherspoon excludable - someone who state must show that jurors belief would cause
him to violate his oath or ignore the law
ultimate question to decide if excludable
will they obey oath as a juror which includes oath to obey the law
if cant obey then is properly excludable
Witherspoon v. Illinois(p1109): willingness and ability to follow instructions as to the
death penalty
facts: excused jurors with problems with death penalty
held: invalidated Illinois statute because the statute excluded for cause jurors who
voice general objections to the death penalty or religious scruples with its infliction
death sentence invalid because of Sixth and Fourteenth Amendments violated
the statute swept too broadly disqualifying too many people for cause
Adams v. Texas(p1110): held unconstitutional a procedure that excluded jurors in
capital case unable to take oath that mandatory death penalty not affect deliberations
on any issue of fact
SC didnt want exclusion sweeping too broadly
Wainwright v. Witt(p1111): limitation on Witherspoon; held: exclusion of the juror was
no error

35
 no violation of Witherspoon, juror properly excused for cause
standard: whether the jurors views would prevent or substantially impair the
performance of his duties as a juror in accordance with this instructions under oath
must be very deferential toward trial judge on issue of whether there was cause
jurors bias need not be shown with unmistakable clarity - makes even more
deferential
dissent Brennan, Marshall: exclusion of this type of juror leads to a jury that is not
neutral and drawn from fair cross section
lost their argument because Witherspoon excludables not cognizable for sixth
amendment purposes
ask questions to get person to say that will follow oath, create a record, save from
being excused if like him
Lockhart v. McCree(p1110): held: Constitution not prohibit removal for cause of jurors
with opposition to the death penalty that would substantially impair their ability to act
as a juror, even at trial part and not sentencing
these jurors are still unwilling to fulfill their obligation, jury was impartial
jury is not biased when it is death qualified
defendant got what the Sixth Amendment guaranteed - an impartial jury
impartial jury - one that will conscientiously apply the law and find the facts
death qualified jury has been screened for service at trial and also for penalty phase
if will be used twice - already not a Witherspoon excludable
distinguished Witherspoon and Adams where was a deliberate attempt to slant jury
to make death penalty more likely
Buchanan(p1111): a who had no death penalty charge against him but had a McCree
jury because of a fellow defendant facing the death penalty, had no constitutional
violation
rules of law that govern improper exclusion or inclusion Gray, Ross
Gray v. Mississippi(p1112): effect of a Witherspoon violation
facts: erroneous exclusion of juror that wanted
held: Witherspoon violation (excluded improperly) and death sentence invalidated
with Witherspoon violation, there is a per se rule requiring the invalidation of a
death sentence imposed by a jury from which a potential juror was improperly
excluded
test is whether jury panel as a whole could possibly have been affected
which it always will be so is per se rule
Ross v. Oklahoma(p1113): failure to excuse for cause, corrected by a peremptory
challenge (compare to Gray)
facts: erroneous non-excusal by trial judge and so used peremptory challenge
should have been excused for cause but this is overcome by peremptory challenge
but did lose that peremptory challenge so argues that he could have gotten rid of
someone else but used peremptory and under Gray that requires reversal
test from Gray - whether the jury panel as a whole could possibly have been affected
by the error
this case would pass this test SO cant reconcile these cases because court doesnt
grant this remedy

36
 held: not denied impartial jury because court incorrectly made defense use
peremptory challenge instead of properly dismissing for cause
peremptory challenges not constitutionally required so not implicate Sixth
Amendment
Morgan v. Illinois(p1114): held: has a right to exclude for cause juror who would
automatically impose death penalty from Due Process Clause of Fourteenth Amendment
relied on Witt and Adams where state can excuse those who would never impose death
penalty
jurors who must be excused for cause (p1115-16)
person who was on a grand jury and was VP of a bank in bank robbery case, daughter
was previously raped
read 1115-16: see statements by jurors and convictions affirmed
are these the right results
one biased juror: could never be harmless error even if evidence is strong
this is direct violation of Sixth Amendment right to jury trial
SO these examples are disconcerting
supervisory power - inherent power of federal judges to maintain control over courtrooms
not statutory
could be construed broadly or narrowly
in Ham used constitution and then do same thing, in Ristaino, Rosales-Lopez court used
supervisory power to rule so this made it only a federal rule by using supervisory power
instead of constitutional power allows state judges to use own power and be reviewed
under abuse of discretion standard

F. Peremptory Challenges (p1117-1140)

no constitutional right to peremptory challenges Ross
Rule 24(b): grants peremptory challenges, 10 peremptory challenges for (20 in
capital cases), six for prosecution
U.S. v. Martinez-Salazar(p1119): held: no violation of Rule 24(b) even though was forced
to use peremptory challenge where should have been dismissed for cause
this and Ross seem crazy, how let juror sit and then appeal, why grant remedy after the
case, would say on appeal that waived right to appeal because had a peremptory
challenge
this is the purpose of a peremptory - in case a judge gets it wrong, use the peremptory to
get rid of the person anyway
SO there is really no choice, cant let juror stay and appeal later
Swain v. Alabama(p1120): equal protection clause limits peremptory challenges
must be proven that prosecutor does it repeatedly, cant prove individually, hard or
impossible to prove
no black person here had ever sat on a jury
this case is about what evidence the must produce in order to demonstrate a violation
of equal protection clause in selection of petit jury
Batson changed this: these records probably didnt exist at all so something had to be
changed
Batson v. Kentucky(p1121): found proof requirements from Swain too stringent
held: remand to review if purposeful discrimination and if so then reverse conviction

37
 can establish a prima facie case of purposeful discrimination based only on the s
trial
use all circumstances around the dismissal
(p1123 column 2): To establish such
cognizable racial group (not for gender but was later extended to gender)
(p1123 column 1 footnote a and text that refers to it): Title VII - in employment
discrimination the burden of proof lies with the claimant, this came to Batson cases
after prima facie showing, state must give neutral explanation for challenging black
jurors (this is only a burden of production)
burden back to claimant to persuade judge that offered reason is insufficient
show that reason by prosecution was a pretext, this is one way to sustain burden
of unlawful discrimination
Marshall concur: eliminate peremptory challenges completely to eliminate racial
discrimination completely
dissent: peremptory challenges do not have to be explained for any reason, no middle
ground
third party standing: Powers v. Ohio(p1127): third standing to assert a Batson violation;
held: white man had standing to claim equal protection violation for black jurors; had third
party standing; 3 part test: (p1127)
(1) injury in fact: about whose rights are we arguing
citizens of state were not allowed to serve - injury to them
if defendant had a fair trial is there any injury in fact to the
Scalia - no injury in fact for white guy to be tried by white jury
(2) close relationship to third party
litigant and juror have common interest in eliminating racial discrimination - but is
this really a close relationship
(3) some hindrance of third partys ability to protect his own interests
this is achieved - juror goes home and not file civil complaint
Holland sixth amendment cross sectionality not apply to petit jury
dissent (Scalia, Rehnquist): no standing, no Equal Protection violation at all,
peremptory challenges not need reason ever
where is line between unlawful discrimination and picking best jury for your side
Batson extended to civil cases: Edmonson v. Leesville Concrete(p1129): peremptory strikes
in civil cases
to implicate equal protection clause there must be a state actor
held: private litigant in civil case may not use peremptory challenges to exclude jurors
on account of race
this is state action
court is state actor
after peremptory challenge - there is no real act by judge, just says step down but the
court held this is state action
these are enormous doctrinal hurdles - third party standing, state action
Batson extended to defense counsel: Georgia v. McCollum(p1129): peremptory challenges
by criminal defense counsel
facts: whites attack blacks; wants white jury
held: cannot use peremptory challenges in a racially discriminatory manner

38
 this is state action even more than Edmonson
(p1130): was there a violation of defendants rights - see reasoning in yellow
point (5): right of impartial jury is sufficiently protected by voir dire examination,
challenges for cause, peremptory challenges against those who are actually biased
these should satisfy s concerns that jury must be impartial so not need use
peremptory challenges improperly
dissent: (p1131) dissatisfied with attempts to use constitution to regulate peremptory
challenges; black s will rue the day the court entered this road which will eliminate
peremptory challenges
court have exalted rights of jurors to sit over rights of
OConnor dissent (p1131): this may deny blacks from having blacks on jury, it is very
important to do this
remedy: makes peremptory challenge and prosecutor objects and court erroneously
agrees with prosecutor so not exclude; is there a remedy
(p1132) Annigoni - was harmless error, no remedy
no constitutional right to peremptory challenge
couldnt show that juror was removable for cause
need for jury pool - fair cross section and impartiality
for petit jury not need fair cross section - Holland
so if no fair cross section problem and no impartiality problem then is it always
harmless error
what is the value of a right if there is never a remedy?
Batson, Powers remedies - unlawful exclusions in these cases, and is harm
harm to an excluded juror and grant remedy to juror which also benefits
used third party standing
but in Annigoni no harm to a juror so only one person harmed, just angry
Blotcher: granted a remedy where Annigoni did not
SO what is the test
it isnt wrongful denial or that would always require a remedy
what power would federal court have to overturn state court denial of remedy
does Batson give a remedy
the difference seems to be no harm to an excluded juror
is the power over a remedy statutory as opposed to constitutional
extending Batson to gender good decision: J.E.B. v. Alabama(p1132): applying Batson
beyond racial discrimination
facts: child support action against father
held: conviction was reversed
Batson extended to gender issues under the equal protection clause
used heightened scrutiny test as used often in gender cases
does the peremptory challenge substantially further the states legitimate
interest in achieving a fair and impartial trial
gender based challenge not pass this test, not further states interest in
empanelling a fair and impartial trial
when is race use strict scrutiny test so gender gets less protection than race
(rational basis test is the lowest of the three tests)
assuming know what categories are protected, what is a prima facie case

39
 Esparsen(p1135): look to many factors for prima facie showing of purposeful
discrimination
get these factors
*Batson based on unlawful, intentional discrimination
ask if there *is there harm to the defendant and juror
(p1133 footnote 38): Batson is about the discrimination to those rejected jurors, not
just the resulting petit jury (which doesnt need cross section anyway from Holland)
even if was 50-50 jury that is challengeable because could have done better 70-
30 so he is harmed also
what is adequate explanation (neutral explanation) on part of government
Purkett v. Elem(p1136): neutral explanations
facts: prosecutor excluded 2 black potential petit jurors for hair
held: neutral explanation of facial hair and long hair was enough to overcome prima
facie showing of discrimination
see Batson test and how process works
step 1 - was a prima facie case by person protesting the challenge -
if so burden of production shifts to challenger
step 2 - need neutral explanation - prosecutors explanation was race neutral
must be trial related, race neutral, reasonably specific/plausible
are many implausible/unspecific explanations - very arbitrary
not hard to achieve
step 3 - has opponent of strike proved purposeful racial discrimination
has the protester of the challenger made his case by preponderance of the
evidence
the burden ends on the protester
Hernandez v. New York(p1137): must be intent to discriminate for Batson neutral
explanations and bilingual jurors
facts: prosecutor struck all bilingual jurors because he worried that they not believe
interpreter or able to understand
want one trial not two - want all jurors receive same testimony
this case excluded those who would not promise to accept translation or who
were not sure if they could do it
the prosecutors behavior did have disparate results on Hispanics but no Batson
violation
must be an intent to discriminate
Batson is about intent to discriminate not disparate impact
can win on disparate impact in other cases but not here
and no business necessity for the rule
not need prove intentional discrimination
just need statistics
Hernandez proves this - important point, harder to prove a Batson violation because
of intent requirement
held: the prima facie case was overcome with race neutral explanation
bilingual issue claimed to cause potential problems but this is not directed only at
Latinos

40
 Batson applies to Hispanics, they have right not to be discriminated against under
the equal protection clause
how deal with cases where mixed motivation
SO where do we go from here; 3 ways
overrule Batson or change the test
will never overrule so reinterpret to get at a different notion of discrimination, need
intention to use in invidious manner - this would be hard to litigate
stay where we are now after Elem - allowing almost any neutral explanation
in federal courts just dont say prohibited words (race, gender) and the
explanation should be fine
it is easier to overcome gender than race (if you do use them and admit it) under
those scrutiny tests
eliminate all peremptory challenges
have peremptory challenges because have to allow lawyers eliminate those who the
lawyer thinks should have been excluded for cause
this saves from having to appeal
to eliminate extremes in partiality
would have too many hung juries
this might lead to nonunanimous verdicts which are bad
is there a theoretical flaw with the Batson line of cases because there is no basis to
navigate the space between cause and peremptory challenges

G. Preserving the Integrity of Jury Deliberations(p1140-50)

evidentiary limitations on juror misconduct: Tanner v. U.S.(p1147)
facts: alleged misconduct by jurors who drank and fell asleep
held: court properly denied a hearing into juror misconduct
Rule 606(b): cant inquire into jury deliberations unless brought in info from the
outside such as highly inflammatory info not in record
no outside influence brought to bear - statutory construction
not denied trial before competent and impartial jury
competent - requirement of jurors
through voir dire and observations during trial - is enough to insure that there is a
fair trial
(p1147) court fears routine impeachment of jury verdicts - this is an important point in
trial by jury
if could impeach jury verdict by post trial investigation of jury verdict then lawyer
would try to interview jurors
court afraid that jurors would not discuss in jury room because afraid of scrutiny
post verdict
SO Tanner and progeny not give remedy - Tanner places a strong protection on jury
deliberation and narrow definition of outside information
anonymous juries: U.S. v. Barnes(p1140): held: keeping names and addresses secret was
fine and barred from inquiring into ethnic and religious backgrounds
government only sometimes gets to empanel anonymous jury
what principle is violated if the request for anonymous jury is permitted liberally

41
 not interfere with presumption of innocence: shackles, anonymous jury do not
really interfere with presumption of innocence, the effect of such small elements is
tiny
not Sixth Amendment right to jury trial: is this really imperiled
venire: voir dire is done to the venire; cross-sectionality is achieved, anonymous not
detract from this, not apply to petit jury
U.S. v. Tutino(p1140): judge empanelled anonymous jury for safety and media reasons;
very bad defendants required anonymous jury for safety and media protection
U.S. v. Sanchez(p1141): anonymous jury for cop on trial was overturned on appeal -
has right to know jury unless extreme circumstances
judge instructions and influence
U.S. v. Walker(p1141): judges must be very careful not to influence jury
U.S. v. Neff(p1142): overturned guilty verdict where judge answered factual questions
not proven at trial; this violated right to trial by jury under Sixth Amendment
Allen v. U.S.(p1142): breaking a deadlock with instructions; an Allen Charge - charge
to break deadlock
dont want one juror to feel pressure from court to conform
so an Allen Charge should include and if so would be called a Modified Allen
Charge
recognition that majority might favor acquittal
reminder that government has burden brd
statement that both majority and minority should reexamine its views
statement that no juror should abandon conscientiously held view
statement that jury can deliberate as long as necessary
U.S. v. Webb(p1143): Allen charge without all 5 was reversible error
U.S. v. Arpan(p1143): not need to say that can deadlock
U.S. v. Ajiboye(p1143): instruction not coerce into decision
U.S. v. Seawell(p1144): reversible error when repeated Allen Charges given by judge
U.S. v. Nickell(p1144): repeated Allen Charge not reversible error where given after
deliberation on Friday and before began again Monday
no intervening deliberation, no second deadlock
Lowenfield v. Phelps(p1144): judge not act improperly where gave Allen Charge during
sentencing phase
Rule 24(c): can empanel alternate jurors
Lies on voir dire(p1148)
if lie then the potential juror has too much of an interest in the case to be an impartial
juror
Langford(p1149): not overturn for juror lying because withheld information not reveal
zealousness to sit which might reveal impartiality; no remedy
Colombo(p1148): juror lied on voir dire and overturned verdict
U.S. v. Olano(p1149): held: court of appeals not authorized to correct his error under
Rule 52(b); not an error that can correct under Rule 52(b) - plain error standard
facts: alternates allowed to sit in on deliberation but not participate
not object

H. The Trial Judge and the Right to Jury Trial(p1150-64)

42
 judge makes decisions before summation on what to charge the jury
then lawyers know what points to speak about and can lead jury through it
but cant talk about what the law is, can address the law but not say what it is, can refer
to jury charge
in closing argument, must do it very carefully to avoid a speech by the opponent
judge has a lot of power in the trial - allows in evidence, deference from appellate
courts
judges cannot aggressively question witnesses
the litigants must control the judges behavior to avoid overturning of verdict
People v. Williams(p1152): Batson applies to peremptory challenges of judges by lawyers
can challenge judges for cause or peremptorily
can challenge biased judge for cause
Bracy v. Gramley(p1152): judicial bias because of corruption of judge
facts: judge had taken bribes in other criminal cases
held: made sufficient showing to establish good cause and get discovery for his claim of
actual judicial bias under Rule 6(a)
Due Process Clause requires a fair trial in fair tribunal
enough evidence to overcome presumption of official acting properly
the trial judge may not direct a guilty verdict, unconstitutional Sullivan v. Louisiana(p1156)

I. Jury Nullification(p1156-57): jury can nullify the application of the law to the facts by refusing
to convict; are examples of great nobility and great shame
Zenger: libel on King, jury acquitted, in 1780s, noble decision
Till: lynching case, shameful, sanctioned murder and lynching
nullification: jury has power to disregard the law; or assumes power to disregard the law
whether it has the power or not and acquits
supporters of nullification: nullification can be seen as completing the law, supplying moral
element that he law doesnt address; as in draft evasions during Vietnam
necessity defense: not same as nullification, there is a public good in the act of the
defendant as strong as the law being violated
stole food to feed starving family
necessity element as powerful as law
United States v. Thomas(p1156): discusses jury nullification; no right to nullify, it is a
violation of the jurors oath
facts: judge excused a juror
held: vacated judgment because of improper dismissal of juror, conviction reversed
legal error was erroneous exclusion of a juror, he should not have been dismissed so
lightly and quickly
want to protect secrecy of deliberations very strongly so if any possibility that it is
from the evidence then must deny request to discharge
the trial judge has a duty to inquire about jury nullification but not to inquire so far
that the judge would be able to find jury nullification without a doubt
judge has duty to faithfully discharge duties: must see that jurors are abiding by oath to
uphold the law BUT cant have judge question too penetratingly into the deliberative
process of the jurors
the juror was dismissed without enough information

43
 Bernie Getz: shot teenagers on subway; convicted of only unlawful possession of a weapon
judge charged jury that if find elements a,b,c of possession of weapon then must
convict; objected to this, he wanted may convict
U.S. v. Trujillo(p1162): cannot argue that the jury should nullify
could try to get nullification but cannot ask for it, must do it indirectly
counter summation from prosecution would say you not congress, must convict
Racial jury nullification
(p1159-60) Butler argument
for violent malum in se should have no nullification
for nonviolent malum in se should consider nullification
for malum prohibitum should have presumption of racial nullification
blacks can use this as a way to fight the system if criminal law not work for them
advocates blacks vote not guilty for black s who commit non violent, victimless
crimes
jury nullification can be good to regulate bad laws and overzealous prosecutors
Kennedy: racial nullification is immoral even as a protest
Marden: racial nullification is cynical, divisive, and risk to blacks sitting on juries at all

J. The Jury Verdict(p1164-68, s242-43)

Rule 31(a): usually verdict in writing and always in open court
Rule 31(b): can return verdict at any time for any defendant
Rule 31(d): request a poll of the jury; have the jury polled every time you lose
Rule 31(e): may return a special verdict on forfeiture
Dunn(p1164): inconsistent verdict are valid
if not supported by evidence then can be attacked later
inconsistent verdicts not mean insufficient evidence
Powell(p1165): cant argue that inconsistent verdicts require acquittal on all counts
Mathews(p1165): can use inconsistent defenses
gets a charge on any defense if basis in record even if inconsistent with each other
Ruggiero(p1165): cant ask jury what it thought, it is unfair to
King(p1166): jury can find guilty of any lesser included offense
the is entitled to a lesser included offense instruction when
(1) request is made
(2) elements of lesser offense are identical to part of the elements of the greater
offense
(3) there is some evidence that would justify conviction of the lesser offense
(4) proof of differentiating elements is in dispute so jury could find guilty of only
lesser offense
(5) there is mutuality
Geiger(p1167): conviction reversed because judge refused to give instruction on related
(but not lesser included) offense
Schmuck(p1167): elements test for determining if court must give lesser included offense
instruction: a lesser included offense is one where each statutory element is also present in
the more serious offense
Carter(s242): application of Schmuck test; held: not need give lesser included offense
instruction

44
 there were different elements
analyzed the textual differences

K. Waiver of Jury Trial: Trial by the Court(p1168-69)

Singer(p1168): SC rebuffed attack on Rule 23(a) which permits to waive jury trial only
when government consents
prosecutors cant deny waiving for ignoble purpose
North v. Russell(p1169): SC held not denied due process when tried before a nonlawyer
police judge with a later trial available de novo

XIV. The Defendants Right to Participate in the Trial(p1207-14, s243-45)

A. The Right of the Defendant to Be Present(p1207-09): Sixth Amendments right to fair trial
includes defendants right to be present during the trial
can remove from the trial for behavior; lost right to be present Allen(p1207)
uniformed police officers being present not inherently prejudice to the defendant Holbrook
v. Flynn(p1209)
was prejudicial to dress in prison garb Williams(p1209)

B. Requirement of Competency to Stand Trial(p1209-12)(s243-45): DPC prohibits prosecution of

who is incompetent to stand trial because he is not present as the Sixth requires
Dusky(p1209): competence test: a is competent when he has sufficient present ability to
consult with his lawyer with a reasonable degree of rational understanding and had a
rational as well as factual understanding of the proceedings against him
Riggins(p1210): not required to take medication in this case; can only force medication if
is danger to himself or others
court should have made some determination of this
this cannot be overcome by state interest as in Holbrook and Allen
defense was insanity: his defense was hurt by the medication, his demeanor was altered
by the medicine so risk of actual impairment of defense presented
is a liberty interest in being free from medication
should use civil commitment if cant render competent for trial without medication
Medina(p1211): DPC permits state to allocate to the burden of proving he is not
competent to stand trial
must be given reasonable opportunity to show he is not competent to stand trial
this is not a violation of Winship to shift competency burden to
Cooper(p1211): overturned requirement of to prove incompetence by clear and
convincing evidence; can only be preponderance of the evidence as in Medina
better to have more risk on states side
distinguish holding in Cooper from decision upholding state placing burden on to
prove insanity brd because state not have to allow for insanity defense at all while
competence to stand trial is a constitutional requirement
Portuondo v. Agard(s243): prosecutor could use that gets to testify last and hear all other
testimony
when a elects to testify, he opens himself up to doubt, can test his credibility and
question him

45
 C. The Right to Be Present at All Stages of the Proceedings(p1212-14): Rule 43: present at all
stages
Rogers(p1212): held Rule 43 violated where not told about note passed between judge
and jury; not harmless error
Alikpo(p1212): was late but that not waive right to be present for voir dire even though
arrived in time for peremptory challenges; not harmless error
judge began jury selection without being present
if was there at the beginning then will waive the right by not showing up but if not
there at the beginning then wont waive the right
costs more money to stop in middle; dont want accused to leave if not going well
Kentucky v. Stincer(p1213): not violate right to confrontation where excluded from hearing
of sodomy victims competency

D. Trial in Absentia(p1214): Rule 43: loses right to be present by disruptive conduct or

voluntary absenting
Crosby(p1214): cant abscond before trial, cant start trial if defendant not present\

XV. Sentencing(p1310-82, s281-88)

A. Introduction(p1310-39, s281): legislature - prosecution - judge - jury - administration

possible challenges to sentencing: DPC, Eighth, First, EPC

B. Cruel and Unusual Punishment

proportionality arises in constitution within cruel and unusual punishment
use Eighth on excessive fines and moves to disproportionality
Scalia and Rehnquist argue that no disproportionality on punishment, Eighth only applies to
fines
excessive not applied to punishment
only no cruel and unusual punishment
(p1317): historical guidelines for cruel and unusual punishment: proportionality not
lend itself to this analysis
Rummell v. Estelle(1313): not cruel and unusual punishment to send to jail for life for three
tiny crimes
Solem v. Helm(p1314): struck down life sentence without parole for seventh nonviolent
felony; Eighth Amendment proportionality requirement prevents this
is substantial deference to the court and legislature
test for proportionality:
gravity of offense and harshness of penalty
compare sentence to other criminals in same jurisdiction
compare sentence to other jurisdictions for same crime
dissent: should have followed Rummell, more deference
Harmelin v. Michigan(p1316): possession of 672 grams of cocaine got life w/o parole
held: upheld statute (many opinions), limited Solem
Scalia - no proportionality requirement in Eighth

46
 Kennedy - proportionality only forbids extreme sentences that are grossly
disproportionate to the crime and this case is not grossly disproportionate
2nd and 3rd factors only valuable if lead to gross disproportionate finding so these
two factors not valuable in this case
great deference: the Michigan legislature could conclude that threat to society is
momentous enough to warrant life without parole
White dissent - there is proportionality requirement and the test works and the
punishment is disproportionate
mandatory sentencing: not unconstitutional if not otherwise cruel and unusual
hard to achieve proportionality attacks
second and third factors from Solem are irrelevant Lowden(p1319) unless grossly
disproportionate as in Harmelin
Eighth only prohibits at best extreme sentences which are grossly disproportionate to
the crime
Bartlett(p1319): did find grossly disproportionate

C. racial animus and the first amendment

Wisconsin v. Mitchell(p1322): enhancement for hate crimes is allowed
court: (p1323) first amendment not prohibit the evidentiary use of speech to establish
the elements of a crime or to prove motive or intent; not chill free speech
court invalidated Son of Sam Law which paid proceeds from book sales by criminals to
the states crime victim board; this was content based law and unconstitutional
must be a compelling state interest and narrowly drawn to achieve that interest
this law was too broad
there was a risk that tangential works would be covered
state can do this but must be more specific
is legitimate state interest to compensate victims so can put weight on first
amendment right of criminal
have upheld statutes for works predominantly about the crime

D. equal protection clause:

U.S. v. Thurmond(p1323): statistical evidence strong for racial discrimination in sentencing
guidelines because of severe sentence for crack and less severe for cocaine but no racially
discriminatory purpose so not racial discrimination
must have discriminatory purpose, discriminatory impact not enough
crack has 100x punishment of cocaine
this is permissible because crack is more: potent, addictive, cheap, and available
this shows huge deference to legislative judgment for penalties

E. options other than incarceration

fine
cant incarcerate poor because cant pay the fine Williams, Tate
the court must try to find a way to let poor pay the fine before throwing in jail to punish
for not paying Bearden
forfeiture of property

47
 is it good public policy to fund law enforcement activities with money and property
forfeited to the US: dont want gov to have stake in forfeitures (AUSA having salaries
funded by forfeitures)
Alexander(p1328): no first or eighth problem with this forfeiture of all books for
having obscene books
first amendment: no free speech problems
no eighth problem: not disproportionate under Excessive Fines Clause
not differentiate between fines and forfeitures
on remand no constitutional violation because the $9m were proceeds of crime
so this cannot be excessive
dissent: this does chill free speech; this is broad, forfeiting entire inventory
Bajakajian(p1329): court struck down in personam forfeiture as excessive under Eighth
where he tried to take money out of country without reporting
held: forfeiture excessive
the money was the proceeds of legal activity
going to be used to pay a legal debt
not a bad person
maximum sentence would be $5k and 6 months
still only 5-4 vote because is a reasonable means of deterring drug dealers and
others even though this guy not bad - general deterrence
Austin(p1330): Eighth applies to civil cases, and the forfeiture can be excessive under
excessive fines clause
property was civil in rem action against mobile home and auto body shop
not matter whether criminal or civil (label not matter)
matters whether disproportionate
culpability of is relevant and there can be an innocent owner defense under this
statute
(footnote 6 p 1332): Bennis: could forfeit car by innocent owner; constitutional to take
property from innocent owner
Caplin and Drysdale: forfeiture of money to be used to hire attorney
pretrial seizure of assets which would have been used to pay attorney not violate
right to counsel of choice
James Daniel Good Real Property(p1332): absent exigent circumstances, a has a due
process right to be present and heard before government seizes property in in rem civil
forfeiture
even though this seems extreme, it is only 5-4
might damage building
owner could get property back
would probably be probable cause
already convicted of crime
court didnt say what procedures must be followed to make forfeiture process
acceptable, this one was bad though
probation
Smith(p1334): couldnt tell probationer not to have kids
Thomas(p1334): cant choose prison over probation, judge has great discretion
restitution

48
 may be a condition of probation
who is a victim (p1336)
pretrial diversion and partial confinement
treatment instead of charges
youth are treated differently, try to help
insanity acquittees and civil commitment
Jones(p1337): after not guilty by insanity, must prove by preponderance that he is
not insane to be released from mental hospital
Foucha(p1337): once not insane anymore, cannot hold

F. Guidelines Sentencing(p1339-75): p1339-1350 wont cover in class (but are responsible for),
will start on p1351
guidelines are constitutional Mistretta(p1351)
Congress had not delegated excessive legislative power - separation of powers issue
this case not preclude court from revisiting question in light of Apprendi
if portions of guidelines which are inconsistent - can find elements by
preponderance then some portion of guidelines will be reexamined by the court
if increases in penalty are severely steep in nature then factual finding to raise even
if within statutory maximum, might need be found by jury as seen in Jones
authoritative commentary in guidelines manual by sentencing commission is binding
Stinson(p1351), unless clearly erroneous reading of the guideline
four sources of law in construing guidelines
constitution
statute which gave rise to guidelines
guidelines
commentary in guidelines manual
SC not have to resolve intercircuit conflicts Braxton(p1351)
relevant conduct
sentence can take into account another crime and then charge with that crime, no double
jeopardy Witte(p1352)
pleaded guilty to marijuana offense and used principle of relevant conduct to add
uncharged conduct to raise sentence
the government charged him with the cocaine charge afterwards
had not been previously punished for cocaine offense, it was an aggravating factor
(stiffened penalty for marijuana offense) so not double jeopardy
guidelines give concurrent sentences to solve this problem
if sentencing factors can be found by preponderance and criminal trial need brd then the
judge can use the acquitted charges to enhance sentence
government can charge for X and punish for X,Y,Z
does this dilute brd by having the tail wag the dog
can include carrier medium in weight of drug for sentencing guidelines
Chapman(p1353)
reductions for substantial assistance
plea bargaining - existence of guidelines enhanced power of prosecutors
FSG (federal sentencing guidelines) transferred power from judges to prosecutors
use this to plea bargain before charges brought

49
 mandatory minimums gives more power to prosecutors
Wade gives more power to prosecutors
allowable for jury to not find exactly which substance was sold and returned general
verdict Edwards(p1354)
to reduce sentence for substantial assistance, government must make a motion
Wade(p1355)
government can refuse to file the motion to reduce sentence on basis of substantial
assistance unless prosecutor doesnt make motion because of 1) discrimination on
basis of race or religion, or 2) decision was totally arbitrary
government would say assistance wasnt substantial to fight the claim
government can make enforceable contract to make the motion Garcia-Bonilla
with substantial assistance motion, court is still bound by sentencing minimum unless
prosecutor motions to lower it Melendez(p1355)
departures from sentencing guidelines
Koon(p1356): sentencing guidelines departure in King case; how much latitude do
judges have to make departures; trial judge gave Koon an 8 level downward departure
5 of 8 levels were on basis of victims wrongful conduct
3 remaining were based on 4 other factors
likelihood from being target in jail
employment problems
burden by federal and state prosecutions
not dangerous or likely to engage in future criminal conduct
held: reversed and remanded sentence
abuse of discretion standard, not de novo
9th circuit was in error for rejecting some but not all of downward departures
there is discretion in sentencing guidelines
district court can depart from sentencing guidelines when there is an aggravating
or mitigating factor that is not adequately taken into account by the guidelines
(p1360)
departures are highly infrequent
ask whether the factor is encouraged or discouraged by the commission to be
taken into account
victim misconduct is an encouraged factor to take into account
abused discretion by accounting for career loss
abused discretion by accounting for likelihood of recidivism
not abuse discretion by considering abuse in prison and successive
prosecutions
heartland of sentencing guidelines: typical cases for the standards
in examining departures, first examine the heartland of the issue v. the
possibility that the instant case is an usual case lying outside of the heartland
then look at factors which are prohibited, encouraged, discouraged for
departures
court rules that 5 level downward departure not an abuse of discretion
the heartland is not present in this case, the heartland is based on unprovoked
assault
initial use of force was legitimate but it turned unlawful

50
 unless factor is proscribed then the court must assess that factor to see whether it
is a heartland case or unusual case outside of heartland
was abuse of discretion to depart downward for
collateral employment consequences
- engaged in wrongdoing under power of law so deserve this
- the commission took this into account
low likelihood of recidivism
- as first time offenders, the criminal history category of guidelines has
taken this into account
policy statements about factors usefulness for going outside range(p1368)
not usually relevant factors for sentencing but maybe for probation conditions
age
education
mental and emotional condition
physical condition and drug dependence
employment record
family ties and responsibilities
factors to consider in determining sentence
role in offense
criminal history
dependence upon criminal activity for livelihood
never factors
race, sex, national origin, creed, religion, socio-economic status
Pullen(p1379): sexually abused boy becomes robber
if a factor is discouraged and not forbidden, the judge may use it to depart from the
sentencing guidelines in extraordinary cases
held: no departure allowed in this case
there would be too much discretion and time consuming sentencing
truth in sentencing: when sentence is announced, the public should know how long the
criminal will serve

G. Sentencing Procedures(p1375-82, s281-88)

Williams(p1375): judge gave death penalty where jury said give life (this cant happen after
Ring(s229): the logic of Apprendi extends to the death penalty, the jury must find the
controlling fact: the aggravating factor)
the judge can consider information outside of court even though had no opportunity to
cross examine or confront
held: upheld sentence
judge not restricted by constitution to information received in open court
historically judge has broad discretion in sentencing
need this discretion to avoid biasing jury
outside information is helpful
protections for under guidelines:
FRCP 32 (Sentencing Reform Act 1984): when use guidelines, must give
presentence report on the guidelines and policy statements that govern his sentence

51
 under Rule 32, court must give reasonable notice to if plan to depart from guidelines
Burns(p1378)
Federal Sentencing Guidelines require perjury at trial to enhance sentence
Dunnigan(p1379)
wont always enhance sentence, may be forgot or confused and not lying
under Federal Sentencing Guidelines prior convictions are relevant factors for sentencing
Custis: cannot collaterally attack prior state convictions in federal sentencing hearing
unless absence of counsel violated Gideon
McMillan(p1380): held state can impose mandatory minimum where judge found
possession of firearm during offense
no constitutional problem with preponderance of the evidence standard for sentencing
at sentencing, no longer a presumption of innocence
this is a sentencing factor and not an element
Harris(s284): reaffirmed McMillan
the Court upheld McMillan and not Apprendi because Apprendi returned a sentence higher
than would have been the maximum under the base crime while McMillan was still in the
sentencing range for the base crime
Apprendi allows prior convictions to enhance outside of guidelines but that is all, all
else must be brd by jury
in federal prosecutions, the charge must also be in the indictment
Cotton(s286): because the didnt raise Apprendi issue at trial, the court used the plain
error test from Rule 52(b) to rule that the couldnt meet this burden
plain error test Johnson
(1) error
(2) that is plain
(3) that affects substantial rights: must have affected the outcome of the proceedings
(4) that seriously affects the fairness, integrity, or public reputation of judicial
proceedings
can prove quantity of drugs at sentencing by preponderance Ebbole
if not convicted of other crimes, can still be sentenced as if he had because only need
preponderance at sentencing Concepcion, Watts(p1381)
can use hearsay in assessing guidelines Silverman
right to confrontation is not applicable to sentencing

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