criminal procedure

Question 1

court’s role in charging decisions

Answer 1

courts should defer to prosecutors on charging decisions

Question 2

admissibility of a defendant’s plea

Answer 2

Admissibility of a plea depends on a “reliable determination on the voluntariness issue which satisfies the constitutional rights of the defendant.”

Question 3

required showing for deficient counsel causing a defendant to enter a guilty plea

Answer 3

When a defendant claims that counsel’s deficient performance caused acceptance of a plea, the defendant can show prejudice by demonstrating a reasonable probability that, but for counsel’s errors, he or she would not have pleaded guilty and would have insisted on going to trial.

Question 4

attorney’s responsibility when there is a possibility of deportation following conviction

Answer 4

When the law is not succinct and straightforward, a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences. But when the deportation consequence is truly clear, as it was in this case, the duty to give correct advice is equally clear.

Question 5

proving a Due Process violation in delay of bringing charges

Answer 5

To establish a violation of due process under the 5th or 14th Amendment, the defendant has the heavy burden of demonstrating both that

(1) the delay resulted in actual prejudice to the ability of the defendant to present her case, and
(2) the government’s delay was intentional and motivated by either (a) an intent to harass the defendant or (b) to gain a tactical advantage over the defendant

Question 6

remedy for speedy trial violation

Answer 6

The remedy for a violation of the constitutional right to a speedy trial is dismissal with prejudice, barring prosecution

Question 7

threshold determination in proving speedy trial violation

Answer 7

Threshold Determination – The defendant needs to demonstrate an interval between accusation (arrest and/or indictment) and trial has extended beyond ordinary permissible delay thereby creating a presumptively prejudicial delay

Question 8

factors indicating violation of speedy trial

Answer 8

Factors considered in assessing whether there has been a violation of the constitutional right to a speedy trial include: (1) Length of the delay; (2) Reason for the delay; (3) Defendant’s assertion of his or her right to a speedy trial (including frequency and intensity of such assertion); (4) Prejudice to the defendant (Courts often place the most weight on this factor – some cases suggest that prejudice is an absolute requirement, but courts have been inconsistent on this point)

Types of Prejudice: (A) “oppressive pretrial incarceration;” (B) “anxiety and concern of the accused,” and (C) “the possibility that the [accused’s] defense will be impaired” by dimming memories and loss of exculpatory evidence

Question 9

burden with showing prejudice in lack of speedy trial claim

Answer 9

Where the government has shown that despite a delay that it acted with reasonable diligence, the defendant bears the burden of establishing prejudice

However, where delay is attributable to intentional misconduct or negligence of the government the burden will shift to the government to show a lack of prejudice

Question 10

effect of public defender’s role in causing delay in speedy trial

Answer 10

As a general rule delay caused by defense counsel is attributed to the defendant not the government.

However, this general rule is not absolute. Delay resulting from a systemic “breakdown in the public defender system” would be the responsibility of the government.

Question 11

when defendants are entitled to a jury trial

Answer 11

The right to a jury trial exists only in prosecutions for serious crimes not for petty offenses. In determining whether a crime is “serious” for Sixth Amendment purposes, courts look to the severity of the maximum authorized penalty. Where the offense could be punished by a prison sentence greater than six months trigger the right to a jury trial, even if the sentence imposed is less than six months. For crimes punishable by a sentence of six months or less, the right to a jury trial attaches only if additional statutory or regulatory penalties “are so severe that the legislature clearly determined that the offense is a ‘serious’ one.”

Rare that a court will find an offense for which six months or less is authorized to be serious (ex: United States v. Nachtigal – DUI offense with 6 month sentence, 5 years probation, plus fines and driving restrictions still only a petty offense)

In the absence of a maximum statutory penalty, appellate courts will consider the penalty actually imposed.

Question 12

Number of jurors and unanimity

Answer 12

Under the federal constitution, while 12 jurors are required for federal criminal prosecutions, states are not required to have 12 jurors in criminal prosecutions – states can have as few as six jurors in criminal cases

While federal juries must be unanimous for a defendant to be convicted, states can under the federal constitution have non-unanimous findings of guilt (including 9 to 3 determinations)

Question 13

double jeopardy protections

Answer 13

(1) Protection against second prosecution for the same offense after acquittal;
(2) Protection against a second prosecution for the same offense after conviction;
(3) Protection against multiple punishments for the same offense (multiple description claims and unit of prosecution claims)

Question 14

double jeopardy and civil actions

Answer 14

The double jeopardy clause does not protect against imposition of a civil sanction and criminal punishment

Question 15

determining civil or criminal

Answer 15

If the legislature intended to establish a criminal punishment, then the inquiry ends, because the punishment qualifies as a criminal penalty for purposes of double jeopardy.

If, however, the legislature intended to establish a civil penalty, review the statutory scheme to ensure that it is not so punitive, either in purpose or effect, as to turn the intended civil sanction into a criminal punishment – court will only find criminal where it is clear that it is criminal rather than civil

Question 16

Hudson/Kennedy v. Martinez Mendoza Factors

Answer 16

(1) whether the sanction involves an affirmative disability or restraint
(2) whether it has historically been regarded as a punishment
(3) whether it comes into play only on a finding of scienter
(4) whether its operation will promote the traditional aims of punishment retribution and deterrence
(5) whether the behavior to which it applies is already a crime
(6) whether an alternative purpose to which it may rationally be connected is assignable for it and
(7) whether it appears excessive in relation to the alternative purpose assigned

Question 17

Blockburger test

Answer 17

The Blockburger Test involves a two-step process. First, the threshold inquiry under Blockburger is whether the alleged statutory violations arise from “the same act or transaction.” Where the threshold is met, a court next examines the statutes to determine whether the crimes of which the defendant was convicted constitute the same offense. For this second step of the analysis, where each statutory offense includes an element not contained in the other, the offenses are distinct.

Question 18

when jeopardy attaches - jury trials

Answer 18

Jury Trials – Jeopardy attaches in a jury trial at the empaneling and swearing in of the jury – Crist v. Bretz

Question 19

when jeopardy attaches - bench trials

Answer 19

Bench Trials – Jeopardy attaches when the first witness is sworn.

Question 20

modes for acquittal

Answer 20

(1) Jury verdict
(2) Trial court determination of insufficiency of the government’s evidence
(3) Appellate court determination of insufficiency of the government’s evidence

Note: if the jury returns a guilty verdict and the trial or an appellate court finds the evidence to be insufficient to support the verdict, thereby setting it aside, that decision can be reversed by a higher court with the guilty verdict being reinstated without violating the defendant’s rights against double jeopardy

Question 21

Implications of the Separate Sovereigns Doctrine

Answer 21

(1) States prosecuting a defendant for criminal conduct after a federal prosecution related to the same conduct (regardless of whether the defendant is convicted or acquitted and even if the elements of the state and federal offenses match) does not violate 5th amendment double jeopardy protections as the state and federal government are separate sovereigns
(2) The federal government prosecuting a defendant after a state criminal prosecution related to the same conduct (regardless of whether the defendant is convicted or acquitted and even if the elements of the state and federal offenses match) does not violate 5th amendment double jeopardy protections as the state and federal government are separate sovereigns
(3) one state prosecuting after another state has done so does not violate 5th amendment double jeopardy protections as the two states are separate sovereigns
(4) prosecution in one country after prosecution in another country does not violate the 5th amendment double jeopardy prosecutions as the two nations are separate sovereigns

BUT – prosecution by state authorities followed by local authorities or vice versa does not qualify for the separate sovereigns exception to the double jeopardy clause

Question 22

Multiple description claims

Answer 22

Multiple description claims often arise in cases in which defendants who have been convicted of multiple criminal offenses under different statutes allege that the convictions violate double jeopardy because the statutes punish the “same offense.” A double jeopardy violation occurs in this context from the court imposing an added punishment unauthorized by the legislature. Ultimately, legislative intent is controlling and if the legislature intended multiple punishments, there is no double jeopardy violation.

For multiple description double jeopardy claims, the court applies the Blockburger test.

Where the offenses are distinct under Blockburger, the legislature is presumed to have intended to allow the offenses to be punished separately. Legislative intent is ultimately controlling though thus this presumption may be overcome by a clear showing of a contrary legislative intent against convictions for both offenses. Legislative intent can similarly overcome a finding of the offenses being the same offense for Blockburger purposes thereby allowing for multiple punishments to be imposed without double jeopardy being violated

Question 23

Unit of prosecution claims

Answer 23

“Unit-of-prosecution” claims involve situations when a defendant has been convicted of multiple violations of the same offense. When considering whether double jeopardy prevents multiple punishments in these types of cases, the courts must determine what the legislature intended to be a single unit of conduct for purposes of a single conviction and punishment. The Blockburger test is not applied in addressing unit-of-prosecution” claims. In evaluating the unit of prosecution, courts will first examine the statute in question to determine if the legislature has expressly identified the unit of prosecution; (2) then review the legislative history of the statute; and (3) perform a factual analysis as to the unit of prosecution. Any ambiguity in resolving “unit-of-prosecution” claims must be resolved against allowing multiple prosecutions. Thus, when it is unclear whether the legislature intended multiple punishments for violation of a single statute, the rule of lenity [(a substantive canon of statutory construction)] prevents multiple punishments.

Question 24

Double Jeopardy – Collateral Estoppel in Criminal Proceedings

Answer 24

Collateral estoppel can provide a basis for barring a subsequent prosecution as a violation of constitutional protections against double jeopardy

The federal decisions have made clear that the rule of collateral estoppel in criminal cases is not to be applied with the hypertechnical and archaic approach of a 19th century pleading book, but with realism and rationality. Where a previous judgment of acquittal was based upon a general verdict, as is usually the case, this approach requires a court to ‘examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.’ The inquiry ‘must be set in a practical frame and viewed with an eye to all the circumstances of the proceedings.’

Question 25

Double Jeopardy – Multiple Counts Acquittals and Mistrials

Answer 25

The jury’s inability to reach a verdict on the insider trading counts was a nonevent and the acquittals on the fraud counts are entitled to the same effect as Ashe’s acquittal.

Because a jury speaks only through its verdict, its failure to reach a verdict cannot—by negative implication—yield a piece of information that helps put together the trial puzzle. A mistried count is therefore nothing like the other forms of record material that Ashe suggested should be part of the preclusion inquiry.