lecture 3.1 Flashcards
indictment & trials
4 ways to charge in a federal system
probable cause
complaint
information
indictment
Probable cause (charging)
no written document but an arrest
grand jury to follow (5th right)
complaint (charging)
affidavit & arrest warrant based on PC
grand jury to follow (5th right)
information (charging)
used when prosecutor knows defendant won’t fight charges
‘pleading guilty’ before guity is an option
waives 5th right to a grand jury
indictment (charging)
comes out of grand jury
simple & speaking
5th absolute right to go to trial under an indictment
simple indictment
simple language, short, covers law
speaking indictment
tells a story
- players, entities, acts
trying to avoid Bill of Particulars
sharing overt acts (jury appeal)
indictment & prosecutor’s role
prosecutorial discretion - charge most readily provable offenses
‘best victim/story’
conspiracy (statute of limitations)
can charge for anything at any stage so long as last act was within last 5 years
sex act (statute of limitations)
must be within last 5 years (no continuing nature)
prosecutorial vindictiveness
can’t charge one crime, try to convince the defandant to plead out & add charges if he doesn’t
selective prosecution
prohibition on prosecution based on race, gender, religion or other consitutionally protected basis
- proof of disriminatory motive as well as discriminatory impact
anonymity rule
innocent parties kept anonymous in indictment (does not extend to co-conspirators)
co-conspirators in indictments
may be named
OR
‘others known and unknown’ if unindicted
RICO
racketeer influenced and corrupt organizations
elements
elements to prosecute
- enterprise comitting 3 criminal acts over 2 years
in practice it’s more frequent & violent offenses, largely mafia/gang related but has started to expand
Diddy’s indictment
speaking indictment
racketeering conspiracy
Scottsboro Boys (1931)
- right to counsel incorporated by 14th as fundamental fairness under 5th in capital cases
- ineffective counsel in case
failure to appoint effective counsel was violation of 14th in 6-3 decision
Miranda, Gideon, Mapp
series of SCOTUS decisions that made federal laws applicable to states (14th)
Johnson v. Zerbst (1938)
6th grants right to counsel in federal cases/prosecutions
Betts v. Brady (1942)
6-3 decision that 14th incorporated fundamental fairness, requires counsel in cases with ‘special circumstances’ for non-capital cases
Gideon v. Wainwright (1963)
overruled Betts
right to counsel under 6th is fundamental right obligatory unto states through 14th
federal/state all have right to counsel (indigent included)
Argersinger v. Hamlin (1972)
6th right to counsel includes misdemeanors
no right to jury trial for any offense with less than 6 month max sentence
Alabama v. Shelton (2002)
establishes right to counsel even when sentencing to probation
- if probation was violated but defendant didn’t have counsel, can’t sentence to incarceration
Wade, Gilbert, Kirby - 60s
established right to counsel at any critical stage of prosecution
Faretta v. California (1975)
establishes defendant’s right to waive counsel & defend themselves
Faretta hearings ensure person wants to defend themselves
In re Ryder (1967)
attorney can’t engage in illegal acts to assist client
Strickland v. Washington (1984)
Strickland rule: 2-pronged showing of ineffective counsel
(1) serious error that lawyer was not functioning as ‘counsel under 6th’
(2) reasonable probability that outcome would be different had they been ‘effective’
