Misc. Procedural Considerations

Question 1

What are the rules governing retroactivity?

Answer 1

A Supreme Court case creating a new constitutional right is fully retroactive to all Ds whether the case is pretrial, at trial, or in the process of direct appeal. However, a collateral P using a writ of habeas corpus will receive the benefit of a new decision only if:

1. the crime is itself decriminalized; or
2. the prosecution was fundamentally unfair and the new rule maximizes the truth-finding function of trial.

Question 2

What are ex post facto crimes?

Answer 2

A crime must be law at the time of the offense in order to punish the D. The basic ex post facto protections include prohibition of the following:

1. retroactive criminal statutes;
2. increasing the punishment after the commission of the offense;
3. removing a defense that was viable at the time of the offense; and
4. applying rules of procedure or evidence retroactively if those rules would make it easier to convict a D.

A state may not enact a statute that extends the limitations period for a crime when the previously applicable limitations period has already expired.

Question 3

What are independent state grounds?

Answer 3

In accordance with the Tenth Amendment, all powers not expressly given to the federal government by the US Constitution reside in the states. Thus, state courts, pursuant to their own constitutions and cases interpreting their constitutions, can give to the criminally accused greater procedural protections than are federally required.

However, if they so proceed, they must indicate that such a decision is based on adequate and independent state grounds and must not entangle state and federal bases.

thus, in any state prosecution, a competent defense will make a separate set of solely state constitutional arguments.

Question 4

What are the procedural considerations privilege against self-incrimination?

Answer 4

The Fifth Amendment provides that no person shall be compelled in any criminal case to be a witness against himself, and that this privilege belongs to the accused and to all witnesses. This right is binding upon the states through the Due Process Clause.

The privilege applies to all proceedings, both civil and criminal, where formal testimony is received. Only natural persons are the holder of the privilege.

The Fifth Amendment privilege applies to questions posed by the government during a criminal trial and in any situation where the individual’s response might be used to incriminate that person in a future criminal law.

The Fifth Amendment privilege applies to questions only from being compelled to provide testimonial or communicative evidence. Thus, the privilege does not protect against compulsion to perform physical acts or submit physical evidence.

The evidence must be self-incriminating.

The D has no obligation to testify, and the prosecution may not comment on the D’s failure to testify.

When a D has pled guilty, he does not waive his Fifth Amendment rights in the sentencing hearing, and the sentencing judge may not draw inferences from the D’s silence at sentencing.

Question 5

What are the exceptions to the privilege against self-incrimination?

Answer 5

Testimony for which he individual has been granted use or transactional immunity is not self-incriminating and hence eliminates the privilege.

Testimony regarding acts for which the applicable statute of limitations has run is also not self-incriminating.

Once a D decides to take the stand and permit questioning on direct examination he may be cross-examined regarding the substance of his testimony. Generally, the D is thought not to waive the Fifth Amendment privilege in total, but to grant a waiver to the extent necessary for reasonable scrutiny by the prosecution.

The Fifth Amendment privilege does not protect volunteered information, regardless of how incriminating. The government is only prohibited from compelling or coercing an individual into incriminating himself.