Adjudication Flashcards
1
Q
Prosecutorial Discretion
A
RULE: P can decline to charge for any nondiscriminatory reason. They have broad, unreveiwable discretion.
[need discriminatory intent, not just discriminatory outcome]
-Very little law that governs this > P just has to meet Probable Cause to bring a charge.
-Sometimes P won’t bring a charge, happens especially in Officer related shootings or when there are no actual victims.
2
Q
Reasons Prosecutor won’t Bring Charges
A
- not enough evidence beyond probable cause b/c of:
- credibility of witnesses
- how serious the crime/deterrent is
- value of the victims (inmates in the prison case)
- political consequences - Indictments can cost a lot and be stressful
3
Q
Fundamental Problem w/ Prosecutorial Discretion
A
Anytime there is discretion, there will be an abuse of discretion but if you restrict discretion there is too much control > don’t want P to always bring charges every time they have PC.
If court tells P they have to prosecute then separation of power b/w executive and judicial is violated.
4
Q
Jury Nullification
A
All of the elements are met but the jury refuses to convict. Its a stop gap to stop P from overreaching but also a problem if the person should be convicted but the jury refuses.
5
Q
Selecting the Charge
A
“When an action violates more than one criminal statute, the Gov may prosecute under either so long as it does not discriminate against any class of defendants.”
6
Q
Criminal Statutes that have identical elements but different statutory maximums
A
For statutes to not coexist they have to be logically incompatible. Can coexist if they are the same but w/ different penalties
7
Q
Equal Protection/ Discrimination Claim
A
- The law is neutral on its face but if its being enforced discriminately thats it is a problem.
- Have to show “similarly situated” persons are not being prosecuted in the same crimes > people who were arrested w/ evidence that they committed the crime but weren’t being prosecuted
8
Q
To Bring an Equal Protection/ Discrimination Claim
A
- Need to show the P acted out of discriminatory intent
- Need some evidence in the beginning to make a showing enough to get disc.
RULE: selective prosecution can be discriminatory which violates equal protection but its hard to show b/c
1. hard to show intent
2. hard to get info you need to show the intent
“all these other people could have been prosecuted for same crime but they weren’t b/c they aren’t in our gender/race”
9
Q
Grand Jury
A
- Not incorporated into state systems but is in the Fed system
- Can waive grand jury review > helpful in negotiating a plea
- Theory: they are more objective than the involved parties
- Ex Parte - nonadverserial
- Unreviewable on the merits
10
Q
Purpose of a Grand Jury
A
- Mechanism to review a case for merits > more screening
- Issue an indictment
- Helps predict what the jury will think
- Supposed to be an independent review and act as a stop gap from gov. power > gives community a voice in the proceedings and in charging decisions
- Investigatory powers and secrecy > subpoena people
11
Q
Hearsay and Grand Jury
A
(Costello v. US)
Hearsay is allowed > different evidentiary stds.
“An indictment returned by a legally constituted and unbiased grand jury, if valid on its face, is enough to call for a trial on its merits.”
Ct won’t revisit the merits of a G.J. decision
12
Q
Exculpatory Evidence and Grand Jury
A
(US v. Williams)
Exculpatory element negates an element ? No duty to present exculpatory evidence to G.J. > to req. P to present this is unworkable.
G.J. doesn’t fall under any branch, so ct doesn’t have supervisory authority over it (investigatory powers are executive but indictment is judicial).
13
Q
Preliminary Hearings
A
- Looking for probable cause
- Judge determines outcome
- Screening function
- Adversarial = right to counsel and cross exam witnesses (confrontation clause)
- Public and on the record
- Slightly higher dismissal rate than G.J.
- Helps D see what P has to offer/strength of case prior to pleading out
- Often waived to not piss off P
14
Q
Joinder
A
- Determines when P can bring multiple charges coming out of the same conduct in the same proceeding.
- Determines when P can bring multiple Ds in the same proceeding
15
Q
Why Prosecutor Wants Joinder (For Multiple Ds)
A
- Economy/efficiency > spending more time on trials often leads to more pleas
- Fuller narrative
- Guilt by association [but could go other way when evidence doesn’t look as convincing compared to evidence for other Ds]
- Weaker chance of prevailing on inconsistent defenses [usually co-Ds who blame each other]
16
Q
Joinder for Multiple Offenses (Rule 8(a))
A
-Very formal rule > joinder has to be proper on the face of the charging instrument, even if at trial it seems improper w/ all the evidence
Components: OR
Proper when the offenses charged:
1. Are of the same or similar character
2. Are based on the same act or transaction (ex. robbery that leads to murder will be tried together)
3. Are connected w/ or constitute parts of a common scheme/plan (ex. soliciting money from diff. vics…all part of the same scheme)
17
Q
Relief from Prejudicial Joinder (Rule 14)
A
- Used when joinder is fine on its face, but if its allowed it will be very prejudicial
- Left to the discretion of the trial ct > can give limiting instructions and COA will often say that’s good enough
- Severance is req.d only when there is a serious risk that a joint trial would compromise a SPECIFIC right of one of the Ds or prevent the jury from making a RELIABLE judgement about guilt or innocence.
18
Q
Joinder of Multiple Defendants (Rule 8(b))
A
-Very formal
-If Ds are alleged to have participated in:
1. The same act or transaction OR
2. The same series of acts or transactions, constituting an offense or offenses
-Does not apply when offenses are of the same or similar character > this would be the same as Rule 8(a)
Ex. Can’t do a joint trial w/ Chester the molester and Herbert the pervert just b/c crimes are same/similar - can bring together if they did the crime together
19
Q
Mutually Antagonistic Defenses and Rule 14
A
(Zafiro v. US)
Mutually antagonistic defenses are harmful so they are prejudicial but not unduly prejudicial = Rule 14 does not apply
20
Q
Right to Counsel
A
-If charged federally = right to counsel
RULE: right to counsel is a fundamental right of criminal justice BUT only attaches if: ACTUAL incarceration
GEN. RULE: Misdeamnors that result in any jail and ANY felony [even if no jail] req.s counsel
-Judge has to decide when to appoint counsel > if no counsel then no way to impose imprisonment, so must be decided early
-Exception: can req. counsel even if no jail if the case is a special circumstance (complex or stigmatizing)
21
Q
Right to Counsel - Capital Case
A
In state & federal cases the 14th A requires D to have counsel
22
Q
Right to Counsel and Suspended Sentence
A
-Basically probation and sentence is re-imposed if probation is violated.
RULE: can’t impose a suspended sentence w/o counsel b/c actual imprisonment is possible.
-Underlying charge won’t be relitigated > use deferred prosecution b/c then the underlying charge can be relitigated if the D doesn’t follow release provisions.
23
Q
When to Appoint Counsel
A
For “Critical Stages”
> trial, prelim, post indictment line-up, interviews. Bail hrgs prob aren’t.
“Counsel must be appointed w/i a reasonable time after attachment to allow for adequate representation at any critical stage before trial, as well as at trial itself”
24
Q
“Attachment” (When to Appoint Counsel)
A
Occurs when the formal adversarial proceedings have begun, filing of the complaint, once the right to counsel has attached not everything that comes after is a critical stage.
Not the same as a critical stage.
25
Photo Arrays and Line-ups (Appointing Counsel)
- Pre-indictment line-up/show-up: not a critical stage so no right to counsel
- Post-indictment line-up: critical stage, so have counsel present
- Post-indictment photo array: not a critical stage b/c counsel could have access to the photos
- Remedy for line-up w/o counsel: motion to suppress but P will just ask for in court id
26
Right to Counsel After Trial is Over
If providing a transcript is a pre-req to an appeal, the state must provide counsel
-Concerned w/ due process and equal protection
27
Right to Counsel on Appeal
RULE: State must provide counsel on first appeal of right but does not have to appoint counsel one subsequent discretionary appeals/ habeas. Exception for pleas
Reasoning: appeals arg. legal issues and legal errors > need attny for this but discretionary appeals involve cases that have already been briefed and there are no new issues
28
Right to Counsel on Appeal After a Guilty Plea
Appeals to a guilty plea are discretionary and not of right > still have a right to counsel b/c its the FIRST appeal, even if it's discretionary
29
Traditional IAC Claim
(Strickland v. WA)
-Burden on D to show attny was incompetent, state doesn't have to show competence
TEST: D must show to prevail
1. Counsel's perf. was deficient AND
2. But for that deficiency, there's a reasonable probability that the outcome would be different [prejudice prong]
-Ct is HIGHLY deferential to attny that perf. was "strategy"
-Basically looking for gross negligence
30
"Deficient" (IAC Claim)
Reasonable std to which we hold counsel. What a reasonable attny would do
31
Prejudice Prong (IAC Claim)
There's a reasonable probability (somewhere less than 50%) there would be a more favorable outcome for D if attny wasn't deficient.
32
Multiple Representation (in same case/proceeding even if tried separately)
-Possible conflict b/c can't presume attny has CLs best interest in mind
TEST: when an attny repping co-Ds makes a timely pre-trial motion for appt of second counsel based on a potential conflict of interest, the trial ct must either grant the motion OR determine whether the risk of a conflict is too remote to matter
-Ct should believe attny if they say they think there's a potential for conflict
-If motion is denied, reversal is automatic unless the trial ct had conducted the proper inquiry and found that there was no actual conflict
33
Multiple Rep Conflict After Trial Occurs
-Ct does not have a duty of inquiry abt conflicts
-Potential conflict becomes having to show actual conflict if raised after the trial occurs
TEST: D must show
1. Actual conflict of interest
2. Conflict adversely affected counsel's behavior [easier std than Strickland b/c just have to show some sort of adverse effect b/c that proves attny doesn't have CL in mind > undermines adversarial process]
34
Waiver of Conflict of Representation
Trial ct may disqualify attny over Ds objections if there's a serious possibility of conflict of interest
35
Self-Representation
There is a const.L right to self-rep but can't dispense of attny on appeal. Waive IAC if self-repping.
Min. Std: have to understand what you're waiving and have to be competent to stand trial.
36
Reasons for Bail and Preventive Detention
Worried about:
1. people fleeing before trial > people who have money to do so, facing serious time, lack of personal ties to community
2. witness intimidation
3. committing more crimes while out
4. expensive to lock people up before trial, possible impact to family
37
Factors for Setting Bail
1. has to be somewhat individualized for this D
2. consider the seriousness of the charge for setting bail
3. weight of evidence against D
4. ties to community/family
5. criminal history
6. Cant be excessive
"fixing of bail for any individual D must be based upon stds relevant to the purpose of assuming the presence of that D"
38
Right to Counsel at Bail
- No right
- No right at probable cause hearing, which is often where bail is decided
- Right at prelim arg where D can arg bail again
- Bail can't be used as punishment b/c that violate due process
39
Arguing a Facial Challenge
Higher burden than "as applied" challenge, has to show there are no circumstances under which this law could be const.L
40
Preventive Detention
Allowed in:
Capital Cases: majority of states preclude bail.
Non-Capital Offenses where the penalty is great > some sex and domestic violence offenses
41
Speedy Trial
6th A
- applies only after D is arrested or subject to formal charges
- Statute of limitations protects against pre-accusation delay
- State has an affirmative obligation to bring you to trial on time > can't delay for sinister reasons
- Violates Due Process Clause if D can show specific and profound prejudice, but even that's not always enough
42
Speedy Trial Rule
(Barker)
RULE: Balancing Test (must answer "yes" before going to next factor)
1. length of delay > threshold question, "uncommonly long delay"
2. reason for the delay > gov or indiv?
3. D's assertion of his right to speedy trial
4. prejudice to the D > stress and anxiety of having indictment, impaired defense b/c passage of time messes w/ evidence
Remedy for const.L claim: dismissal w/ prejudice
43
Speedy Trial Statutes
Tend to provide strict time limits: depends on nature of offense and if D is in custody.
Can be tolled for good faith actions in the case.
Remedy can be dismissal w/ or w/o prejudice.
44
Guilty Pleas (Rule 11)
- Protecting const.L rights. Procedures the ct has to follow for a plea to be valid.
- Focuses on disclosure of what D is giving up
- Judges are not req.d to accept agreements for:
1. dismissal
2. charge-reduction
3. sentencing
45
Reliability (Guilty Pleas)
D should be told about the relevant law, what D is charged w/, the rights D is giving up, about the relevant facts and the relevant law
46
Alford Plea
- Std for plea: whether the plea represents a voluntary and intelligent choice among alternative courses of action open to the D
- When D pleas guilty but maintains their innocence
47
Guilty Plea and IAC
(Hill v. Lockhart)
Counsel must communicate offers of plea bargains
Ct used Strickland, but the prejudice prong is different:
1. Attny's perf is deficient AND
2. D must show attnys defective perf affected the outcome of the plea process
48
Guilty Plea, IAC, and Not Telling CL about Offers
Ct used Strickland, but the prejudice prong is different:
1. Attny's perf is deficient AND
2. D must show a "reasonable probability they would have accepted earlier plea offer had they been afforded effective assistance of counsel" AND a reasonable probability that the plea would have been entered w/o the state withdrawing it or the trial ct rejecting it
49
Guilty Pleas, IAC, and Bad Advice
D rejected plea on bad advice and got a longer sentence at trial
Has to show:
1. Attny's perf. is deficient AND
2. Show D would've accepted plea deal if not for the bad advice and the plea deal would have resulted in a short sentence
Remedy: reoffer original deal but trail ct doesn't have to take it
50
Charge Bargaining
Charges will dropped or downgraded if D pleas guilty.
Judge is unlikely to reject this plea b/c P has discretion in bringing trials and not accepting pleas clogs the system.
Criticism: leads to P overcharging to be in a better bargaining position and D ends up w/ charge they should have gotten w/o a deal,
P can bring higher charges as a result of D not pleding
51
Sentence Bargaining
P agrees to recommend or not oppose a particular sentence, ultimately judge decides, but judges often go w/ the recommendation to help keep plea bargaining system running.
52
Fact Bargaining
Minimum range jurisdictions.
| P will drop facts to change the range of possible sentence, relevant in jurisdiction w/ strict sentencing guidelines
53
What would make a plea involuntary?
1. "Actual or threatened by physical harm or mental coercion overbearing the will of the D" > willful harm that the state cant lawfully impose
2. bringing other people into it, like saying if you plea guilty, we won't charge your son
3. Plea is still voluntary even if P didn't turn over exculpatory evidence b/c ct has never held that substantive exculpatory evidence can overturn a plea
54
Pleas as Contracts
- If P says they will or will not recommend something as part of deal, they need to do that.
- P can w/draw a plea up until it is entered (unless there is detrimental reliance) but once its entered P has to stick w/ deal.
55
Remedy for breaching Plea Deal
Remand it back to the State w/ two recommended options:
1. Allow D to vacate his plea
2. Req. specific perf. from P
56
Pre-Trial Discovery
```
Knowledge is asymmetrical b/w P and D.
D wants to know:
1. physical evidence. Ex. videos
2. Police report
3. Witness Lists
4. Criminal record of CL
5. Scientific evidence and tests performed
6. Any stmts made by CLs or witnesses
7. Any exculpatory evidence
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57
Discovery the State has to Give to D (Rule 16)
1. stmts by Ds
2. physical evidence
3. Witnesses
4. Ds criminal record
5. Scientific tests and examinations
58
Rule 16 Stmts by Ds
State has to provide access to any written or recorded stmts.
Req.s disclosure of substance of oral stmts made to known gov.L agents that will be used at trial.
Exceptions:
1. unless its an informant or undercover cops info
2. doesn't apply to stmts by co-Ds
3. If it's exculpatory it needs to be turned over no matter what
59
Rule 16 Physical Evidence
There is a right to inspect physical evidence if its from D, its material to the defense, or will be used at trial.
Problem: if P isn't going to use something and they dont test it, then D will never know if they could have used that evidence themselves.
60
Rule 16 Witnesses
Very little disclosure mandated b/c dont want D to lie based on what the witness is saying. Need to provide a summary of expert's testimony.
61
Rule 16 Scientific Tests and Exams
Results of scientific tests and mental or physical exams w/i the gov.'s control.
If the gov. intends to use it at trial or its material to the D.
62
Due Process as it Applies to Discovery
-If D has to produce disc. then P has to reveal stuff too > there must be reciprocity
RULE: Const. permits significant mandatory disc. from the defense but it must be reciprocal
63
Compulsory Due Process
The right to call witnesses > but right isn't absolute and if you abuse it (not giving proper notice or lying about contacting them and then claiming they are a "last minute" witness) you lose it.
Remedy: preclusion of witnesses to punish attny for misconduct.
64
Const.L Discovery: Brady
- The suppression of evidence favorable to the accused violates due process when the evidence is material to either guilt or punishment.
- P's bad faith isn't necessary.
- Affirmative duty
- Have to look at facts to determine if Brady is applicable
65
"Favorable to the accused" (Brady)
Relevant to the proceeding, exculpatory; anything that can be impeaching.
Substantive: less likely you did or are guilty of the crime
Procedural: something fishy w/ witness like witness motive or impeachment
66
"Material" (Brady)
Evidence is material only if there is a reasonable probability that had the evidence been disclosed to the D, the result of the proceeding would have been different. A reasonable probability is one that is sufficient to undermine the confidence of the outcome.
- Burden is on D to show this.
- Look at the whole of the case and evidence
67
Elements of a Brady Claim
Evidence must be:
1. favorable to the accused
2. suppressed by the state
3. material
68
Guilty Pleas and Brady
JUST FOR IMPEACHMENT: Brady material doesn't have to be turned over before a guilty plea.
Why? Brady is a trial right [no right to brady at the grand jury]
69
Preserving Evidence and Brady
D must show bad faith by police for failure to preserve potentially useful evidence to constitute a deprivation of a fair trial.
Bad Faith is a strategic choice to destroy.
70
Right to a Jury Trial
Right applies to any offense for which the maximum potential sentence is more than 6 months.
Don't look at the actual punishment, just look at the statute to determine potential punishment.
If no potential punishment is specified: look at the actual sentence imposed, consider aggregation of multiple counts.
71
Waiving Right to a Jury Trial
Can waive the right to a jury trail and get a bench trial instead
72
Number of Jury Members
Can't go below 6 people on a jury. If only six people then decision has to be unanimous.
Const. mandates a jury sufficient to:
1. promote group deliberation
2. insulate jurors from outside intimidation
3. provide a representative cross-section of the community
73
Fair Cross Section of a Jury
This right only extends to Venire, not who ends up in the jury box.
Prima Facie Violation.
TEST: D must establish: AND
1. that the group alleged to be excluded is "distinctive" (i.e. gender and/or race)
2. Representation of this group in the venire is not fair and reasonable in relation to the # of these people in the community > assessment must be over time and not in one particular venire
3. Under-rep is due to systematic (by state) exclusion of group in jury selection process > look at disparate impact, not intent
If action passes test, then burden shifts to state to show a significant state interest in law and show what has caused the under-rep.
74
Exemptions From Jury by State
State may impose relevant qualifications and allow reasonable exemptions without triggering the Fair Cross Section Issue
Ex. Small town exempts medical personal b/c hospital is understaffed so there's a state interest in keeping hospital staffed. Primary caregiver exemption.
75
Duren Test
Jury Claims:
| Fair cross section claim is about venire, not petite jury. Right is not rooted in the equal protection clause
76
"For Cause" (Jury Selection)
Unlimited. Determined by a judge. Attny can move for it but the judge decides. Usually based on undue hardship or the person is extremely biased. Needs to be said on the record and reason for removal must be articulated.
RULE: if someone says they can't impose the death penalty and vice versa that's a for cause reason to remove someone from a DP case.
77
"Preemptory Challenge" (Jury Selection)
Limited in number. used for moderately viewed jurors. Up to the attny to use to kick off people they don't want/like.
78
Batson Rule - Prima Facie Case (Jury Selection)
Prima Facie Case: (not a high threshold)
1. struck juror is a member of a cognizable racial group
2. D must show that these facts and any other relevant circumstances raise an inference that the P used these practices to exclude the potential jurors on account of their race
Relevant circumstances:
a. pattern of strikes
b. racially patterned differences in questioning
79
Batson Rule - After Prima Facie is Proven (Jury Selection)
Burden shifts to P to:
1. provide a neutral reason for preemptory
a. need not rise to level of challenge for cause
b. has to articulate a specific, neutral reason related to this particular trial and juror, but doesn't have to be a good reason
c. mere assertion of good faith isn't enough
After Neutral Reason is given:
1. Trial ct decides whether the state's proffered explanation is reasonable or credible.
Hard to do b/c judge basically has to tell P they are a racist liar.
80
Standing and Batson
The Equal Protection of the juror is what matters so the race of the D doesn't have to be the same as the juror who is struck. The D has standing to challenge the juror being struck b/c asserting a claim on behalf of the juror.
81
Things P Can't Say in Closing Arguments
1. Their opinion of Ds guilt
2. Say D is guilty b/c they didn't testify
3. Can't reference evidence/facts not before the jury, can't mistake evidence
4. Try to burden shift by suggesting D didn't prove their guilt
5. (in sentencing) can't say jury is responsible for consequences of decision
6. Can't remove jury of their responsibility by saying D has appeals
7. Can't compare D to infamous criminals
82
Burden Rule (Improper Conduct in Front of Jury)
Whether the comments so infected the Trial w/ unfairness as to make the resulting conviction a denial of due process.
Ct's are more likely to say it's unfair if P mistakes the evidence
83
Confrontation Clause*
Super Strong Right.
Out of court stmts made by declarant who wasn't testifying > Ds generally have a right to cross examine
Crawford: If the stmts are testimonial, then they are only admissible if there was a prior opportunity to cross exam
84
Confrontation Clause and Testimonial Stmts
When a stmt shifts from addressing an emergency to being testimonial is when CC comes into play.
TEST: are stmts about what is happening or what had happened?
Happening: non testimonial = no CC problem
Had Happened: testimonial = CC problem
>Trying to find the difference b/w stmts made to assess immediate danger/emergencies and interrogation questions
85
CC and Forensic Testing
Certificate from a state lab certifying the contents and quantity of a seized substance is testimonial.
Ds have a right to cross-examine researcher who did the tests, not just an analyst who did not do/supervise the test.
86
CC and Bryant Test
Was the primary purpose of the officers questioning of the victim to enable them to meet an ongoing emergency?
> Test is objective
> Need to look at the intent of the speaker and questioner: why were they asking/answering?
> If purpose was to address emergency then no CC problem b/c non testimonial
87
CC and Co-Ds
Situation where one co-D confesses and implicates the other co-Ds but then doesn't testify at trial.
RULE: Stmt implicating co-D is inadmissible against co-D b/c confessor is not able to be crossed
> not enough to introduce stmt and give limiting instructions - that's expecting too much from jury
> not enough to just redact name from stmt - there's no other evidence needed to be able to draw inference about co-D = trials need to be severed
88
Rights at Sentencing
1. Right to counsel
2. Kinda due process
3. To present evidence
4. To remain silent or speak
5. That proceedings be public
6. Right to see PSI report in advance
Sometimes available:
1. Disc. and evidence inspection
2. Timely hearing
89
Rights Not Available at Sentencing
1. Jury Trial and proof beyond a reasonable doubt
2. Confrontation
3. Double Jeopardy
4. Rules of Evidence like hearsay and prior bad acts
90
Sentencing Systems
Indeterminate: trial ct has abundant discretion to sentence an offender anywhere w/i a statutory range. Often includes system of parole
Determinate: Leg. limits discretion. Often bars parole
91
Apprendi
Any sentencing factor that increases the penalty for a crime beyond the statutory maximum must be found by a jury beyond a reasonable doubt b/c its basically an element.
Comes into play when the sentence is going over the maximum authorized by the statute.
92
Statutory Range
```
Range of allowable punishment for a particular crime or class of crimes.
Ex. First degree burglary is punishable by a term of imprisonment of 1-20 years. First degree criminal sexual assault is a Class X felony. Class X felonies are punishable by a term of imprisonment of 8-40 years."
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93
Guideline Systems
In ADDITION to statutory ranges!
Rules imposed to tell the judge where w/i an applicable statutory range she can sentence the D.
Discretion is limited by factors like the Defendant's motive, criminal history, cooperation w/ authorities.
94
Blakely v. Washington
- What's the max sentence under Apprendi? Follow statute or guidelines?
- RULE: The statutory maximum is the max sentence a judge may impose solely on the basis of facts reflected in the jury verdict or admitted by the D.
- Right to a jury trial matters enough to require all criminal sentencing to be based on facts found by a jury beyond a reasonable doubt.
- Applies to all facts that are essential to a lawful imposition of the penalty
95
Fed. Sentencing Guidelines
```
4 Step Instructions to use chart:
1. What's the base level offense?
2. Do ay "specific offense characteristics" apply? If yes > add levels to base offense
3. Do any "adjustments" apply?
4. What's Ds criminal history category?
Guidelines were binding
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96
Blakely and Fed Guidelines (Booker)
System was same as Washington. Two solutions:
1. if you want to convict on something you have to present every fact to the jury, even sentencing facts OR
2. [ct chooses this one] say guidelines are just suggestions and are not mandatory
Outcome: FED sentencing cts can consider but they are not bound by ranges. Appellate review is reasonableness instead of de novo. If w/i guideline range then reasonableness is presumed.
97
Deviating from Guidelines (Gall)
Guidelines are only a factor. Deviation does not have to have a proportional justification > just use an abuse of discretion std.
Don't need an extraordinary reason to depart from guidelines.
98
Direct Appeal
- Restricted solely to the record > transcript and recorded filings.
- IAC must be raised on direct appeal, but f its not on record then submit a petition
- Brady Claims usually won't be in the record either
99
Collateral Appeal (aka State Habeas)
Attacking conviction w/ something not on the record, file a motion in trial ct about this and then appeal is based on this other record in trial ct.
Not about what happened at original trial, about new info in post-conviction
Ex. new evidence, something that should have been on trial record
100
Appeals Generally
- Appellate ct isn't a place for new facts > its a place to figure out what happened below.
- Default std after conviction is to maintain the conviction > no reasonable jury could have found you guilty
- Appeal law is w/e is good law at the time of the appeal, not the law that is in effect during the trial
101
Chapman Harmless Error Std of Reveiw
RULE: Before a reviewing ct can find a fed. const.L error to be harmless, the ct must be able to declare a belief that it was harmless beyond a reasonable doubt.
- State has burden to show that the error was actually harmless.
- Presumption is if there is a const.L error then the state has to convince the judge it was harmless
- Able to isolate the damage
102
Structural Defects
If established then its an automatic do-over; no prejudice prong.
1. no counsel
2. judge is biased
3. not being allowed to self rep
4. jury isn't a fair cross section
5. not honoring trial by jury request
6. jury instruction that misallocates the burden or doesn't explain burden properly
7. right to public trial
8. whole trial is corrupt
9. Not the kind of error that fundamentally made trial wrong, it's bigger than just this one D and we have to be able to protect this fundamental right
103
Const.L Trial Errors
1. Harmless Error if and only if its objected to in trial. Ex. attny objects and says they should be able to cross-exam a witness and judge says no
2. Plain error if its not objected to
104
Plain Error
Error and D didn't object.
D must establish that:
1. an error occurred
2. that error was "plain" > obvious and clear at time of appeal
3. that error affected substantial rights
-Like harmless error BUT D bears burden of persuasion as to prejudice
-Ct should correct a plain forfeited error if the error "seriously affects the fairness, integrity, or public reputation of judicial proceedings"
-Permissive, not mandatory > ct can just decide the plain error didn't prejudice
105
Stds of Review
-Prejudice inherent part of legal standard:
1. Brady (suppression of exculpatory evidence)
2. Strickland (ineffective assistance of counsel)
-Structural errors:
1. Automatic reversal—no need to show prejudice
-Harmless errors:
1. Constitutional errors (Chapman)
> Burden on government to show harmless beyond a reasonable doubt
2. Non-constitutional errors (Kotteakos)
> Burden on government to show that error did not have a substantial influence on the verdict (ex. disc., hearsay) (easier std than Chapman)
-Plain error:
1. Burden on party who suffered error but failed to object to show it harmed a substantial right
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Statutory Habeas Corpus
State prisoner says being held for nonconst.L reasons > civil action against warden; collateral, not part of the direct appeal.
Creates a mechanism of enforcement to ensure states follow the rules
107
Conviction is Final
After full appeals by right is complete (SCOTUS is last step)
108
Teague v. Lane (HC)
RULE: don't apply rules retroactively to final convictions
Analysis:
1. When did Ds conviction become final?
>when direct appeal is over, not when jury make initial decision
2. Would state ct considering Ds claim at time of his conviction became final have felt compelled by existing precedent to conclude that the rule he seeks was req.d by the const.?
>if not clear, then rule sought is prob new and there's a presumption of no retroactivity
>can't present an issue of 1st impression on HC
3. (Exceptions) If its a new rule, is it substantive or procedural?
>substantive can be retroactive
>procedural won't be applied unless watershed
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Teague HC Substantive v. Procedural
If new rule is substantive, applied retroactively:
-gov lacks authority to punish this conduct of this class or people
If new rule is procedural (rule to make the process fair) it is not retroactive unless it is a watershed rule of criminal pro. Ex. Gideon
110
New Rule for HC Review
1. A rule that breaks ground or imposes a new obligation on states, such as when ct overrules a prior decision. Ex. Miranda, Crawford.
2. When result was not dictated by existing precedent.
>won't disturb state ct conviction unless state ct, at the time of conviction was final, would've acted objectively unreasonably by not granting the relief sought by petitioner on fed. Habeas
3. Gradual developments over which reasonable minds could differ should not upset finality of state convictions that were valid when entered.
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Std of Review Imposed by AEDPA
State ct determinations tested only against clearly established fed. law, as determined by SCOTUS. Writ may not issue unless the state court's decision is "contrary to, or involved an unreasonable application of" that clearly established law.
"Unreasonable" is VERY WRONG
112
Procedural Issues on HC
1. Time Limit: one year limit > starts when conviction is final but its tolled if there is a properly filed collateral appeal
2. Exhaustion: must give the state the chance to fix its own error. Includes requesting discretionary and collateral appeals. Applies to guilty pleas. Must raise const.L issue being complained about.
3. Not on record: do a collateral appeal based on state rules of procedure.
113
Procedural Defaults in HC Appeals (Wainwright v. Sykes)
-Have to preserve fed. const.L issues and play by the state's rules
-Proc. Default is when the state disposes of case on "adequate and independent state grounds"
-If there was no state review of const.L issue b/c issue was kicked out on state procedural grounds, then no HC b/c can't punish state for doing something wrong if they never addressed the issue in the first place
-Absent showing of cause for waiver and actual prejudice from alleged const.L violation, Ct will not review Ds arg [mistakes by counsel can only be cause if bad enough to pass IAC]
>Cause: possibly claims not raised b/c of gov misconduct
>Prejudice: none unless there is a reasonable probability that the result of trial would have been different but for the error
114
Smmation of What Petitioner has to do to get HC
1. Exhaust state court remedies
2. Present federal const.L issues in state court
>state ct must have addressed merits of fed const.L issue, if state could have legit.Ly avoided ruling on the fed issue, nothing for fed. ct to correct
3. File on time (1 year limit)
115
HC Procedural Checklist
Once properly before fed ct:
1. If petitioner is seeking application of a new rule, presumption is that it does not apply unless:
> rule is substantive
> Watershed crim pro rule
2. If petitioner is seeking application of an old law (one dictated by existing precedent) or falls w/i new rule exceptions then
3. Petitioner must show not only that the state ct was wrong, but that
a. state cts decision was contrary to clearly established law OR
b. involved an unreasonable application of that clearly established law
116
HC and 4th A
HC does not apply to 4th A!!
117
HC and Chapman Harmless Error
Even if it's a const.L error that was objected to, Chapman is too stringent for HC so use Kotteakos. At this point, Ct is looking less to punish states and more about individual D.
118
Stds of Review for Habeas
1. Kotteakos: did the error have a substantial and injurious effect or influence on the jury’s verdict?
•If judge is left w/ a “grave doubt” that the error may have had a “substantial influence” then the conviction cannot stand
>Burden on state
2. Prejudice is part of claim: IAC/Brady
But structural errors still get automatic do-over
119
Double Jeopardy
Protects against:
- Second prosecution for same offense after ACQUITTAL
- Second prosecution from same offense after conviction
- Multiple punishments for the same offense
- Strategically-motivated mistrial that lets the gov pick a more favorable jury
Jeopardy attaches when the jury is sworn or in a bench trial when you call the first witness
-Anything pretrial (like dropping charges) is not jeopardy so everything can come back to be tried again
120
Double Jeopardy and Mistrials/Hung Jury
Typically, State can retry these cases.
1. Who asked for it?
Defense > can’t complain once they get the mistrial
Exception: ask did the prosecutor intend to goad the defense into asking for a mistrial
> If yes, no retrial
> If no, then its okay to retry
2. The defense didn’t request it (ex. Hung jury)
Ask, is there manifest necessity to retry?
> If yes, ok to retry (hung jury is always manifest necessity)
> If no, no retrial
Std: is there manifest necessity for mistrial to overcome DJ?
121
Double Jeopardy state and federal
“Different sovereigns” > can be tried for the same crime/charge by the state and federal gov in two different trials
122
DJ and Procedural Acquittal
(Fong Foo v. US)
- DJ bars re-trial where judge orders jury to acquit even if the judge was wrong.
- When acquittal was done procedurally erroneously the acquittal is still final
RULE: an acquittal is an acquittal, regardless if it was based on facts or procedure
Exception: waiver of double jeopardy if you bribe the jury or judge for an acquittal
123
DJ and Guilty on Appeal
Jury says guilty, COA says not guilty, highest ct says guilty > not a violation of DJ b/c just reinstating jury verdict, not giving new trial
124
DJ Acquittal
If you’re a D the best thing is an acquittal for insufficient evidence or no reasonable jury could convict
No prosecution appeal and no retrial
•Applies to “implied acquittals”
•When the jury doesn’t say anything about a greater charge and only convicts on a lesser charge then its an implied acquittal of the greater charge
125
DJ and Same Charge Against Different Victim
(Ashe v. Swenson)
D is acquitted of robbery against X, but then state charges D w/ robbery against Y.
TEST: whether a rational jury could have grounded its verdict upon an issue other than that which the D seeks to foreclose from consideration.
>Only reasonable reason jury acquitted was b/c they did not believe D did the robbery so can't retry case w/ different victim if jury already ruled on that base issue
126
DJ and Dismissal
```
AFTER JEOPARDY HAS ATTACHED
1. Grounds related to guilt/innocence?
> No retrial
2. Grounds UNrelated to guilt/innocence?
> Retrial okay
```
127
"For the same offense" (DJ)
Blockburger TEST: each crime has to have a unique elements from each other (Ex. Crime 1 has A B C and Crime 2 has A B D > C and D are each unique elements)
TEST: do each of the two crimes charged require proof of at least one fact that the other doesn’t?
-Only have to look at the charging doc, not the facts
128
DJ and Lesser Included Crimes
Lesser included crimes are barred by DJ so cant convict of armed robbery and then come back and charge w/ robbery b/c that was included in armed robbery and would constitute the same offense
129
DJ and "List Crimes"
Treat predicate crime as part of the lesser included and an element. For felony murder the felony is considered a lesser crime and can’t be charged again.
Exceptions:
1. Conspiracy: not the same offense as the eventual crime > distinct offense so they don’t need to be brought together
2. RICO and CCE: these are different than crimes like felony murder b/c these people commit a lot of crimes
130
DJ and Dual Sovereignty Doctrine
-Successive prosecutions otherwise barred by the DJ clause may nevertheless be brought by different states
-A crime is an offense against the sovereignty of the government
-The prosecuting entities must derive their power from separate sources
> Ex. Cant be prosecuted by separate counties b/c they all derive their power from the state
131
DJ and Civil v. Criminal Distinction
Can be tried for same act/offense in civil and criminal ct b/c different burdens of proof. But beware of civil crimes that mimic criminal so much they are barred.
(US v. Halper)
TEST: Is there a rational relation between the goal of compensating the government for its loss and the amount of the civil sanction?
> Civil damages can't be so excessive that they act like a punishment
(Kurt Ranch)
Taxes are to create revenue - make sure tax isn't becoming criminal penalty
132
DJ and Civil Forfeiture
Civil forfeiture: cannot profit from wrongdoing > cant keep ill gotten gains or something that’s only purpose is to be used illegally
-not a punishment b/c its civil and goes after property, not a person
133
DJ and Civil v. Criminal 2-Step Test
1. Did the leg., in establishing the penalizing mechanism, indicate either expressly or impliedly a preference for a criminal of a civil label?
2. If labeled civil, is the statutory scheme so punitive in purpose or effect that it transforms what was intended as a civil remedy into a criminal penalty?
>This prong requires “clearest proof”
