Overview and Summary (readings)
U.S. v. Cordell (readings)
Stages of the process
- Arrest
- Booking
- Initial Appearance (before magistrate, assessing for probable cause)
o Complaint
o Supporting affidavit
- Preliminary hearing (first adversarial proceeding)
o Could get around preliminary hearing by going before GJ, return
indictment
o Have to be indicted eventually anyway, but indictment before preliminary
hearing moots that
- Binding over – determining bail conditions & such
- Constitutional right to be indicted by GJ unless that right is waived
o If so, then information brought by prosecutor
- Pretrial motion hearing
- Trial
- Sentencing
- Appeal
Bail
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Main sources of bail regulation
o 14th & 5th amendment due process clauses
o 8th amendment excessive bail clause – has not been incorporated against
states
 State constitutions historically played greater role
Interests at stake in release decision:
o Ds’ interests
 D’s liberty (+ other bad stuff that happens in jail)
 D’s ability to prepare adequately for trial & assist in D (can be
restricted)
 Increased pressure to plead
 Loss of job & income, strain on family relationships
 Some evidence that Ds unable to make bail are more likely to be
convicted & sentenced to jail
o Public interests
 Risk of flight; undermines integrity of justice system, frustrates
retributive & deterrent purpose
 Risk of destruction of evidence, witness intimidation, more crime
Release types
o Field release (citation)
o Stationhouse release (if taken to station)
o Bail schedules (pay set amt of $$ to get out)
o Own recognizance
o
o
o
o
o
Supervised released
Third Party Custody
Unsecured bond – pay only if fail to appear
Deposit bond – put 10% down, get $$ back if you appear; pay full if flee
Full bond (+ bail bondsman)
Stack v. Boyle (1951)
- Interpreting the “no excessive bail” clause
- Formerly, D was entitled to be released on bail
- Bail may only be set based on standards for ensuring D’s presence
o Can’t set bail unreasonably high by inferring flight risk from the fact of
indictment alone
- No talk about whether safety of community could be a factor in assessing bail
Bail Reform Act of 1984
- 3141 – judicial officer authorized to order detention or release @ any number of
stages, as in this chapter
- 3142: When a person charged appears, judicial officer shall order that a person
o Be released on recognizance or unsecured bond – SHALL order this
unless such will not reasonably assure appearance or will endanger safety
of person / community
o Conditional released (listed on Supp. pp. 183-84)
 Can’t include a financial condition that results in detention
o Temporarily detained – to revoke conditions, such as if person was on
release pending trial
o Detained: if no condition or combination of conditions will reasonably
assure appearance of person or safety of person / community (Supp. p.
185)
 Rebuttable presumption of such if the person has been convicted of
certain offense; that offense was committed while out on bail;
period of no more than 5 years has elapsed
 Also rebuttable presumption for certain drug laws
o Detention hearing, upon gov’t motion, (Supp. p. 186)
 For certain kinds of crimes, or for flight risk
 Long paragraph on procedure
o List of factors to be considered
o Stuff on contents of release order and contents of detention order
- 3143:
o Person convicted and awaiting sentencing shall be detained unless court
finds that no flight / danger risk
o Same for person who is appealing, but additional finding that the appeal is
not to delay and is likely to reward in something positive for D
- 3144: can order pretrial detention of material witness
- 3145: Review & appeal of release / detention order
- 3146: Penalty for failure to appear (actually a criminal punishment section)
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3147: Penalty for offense committed while on release (also a criminal punishment
section).
3148: Sanctions for violation of release condition (pretty much go back to 3142)
3149: Surrender of offender by a surety (allows bail bondsmen to arrest)
3150: These rules apply to a case removed from state court
For likeliness to appear, look @ all factors – factors that might indicate dangerousness
(criminal record, for ex) might also suggest incentive to flee (will get harsher sentence)
- For D, want to talk stability – including past compliance with conditions of
release, community ties, job, etc.
US v. Salerno
- OK, constitutional, to detain pre-trial b/c of dangerousness
o 8th amendment doesn’t guarantee bail; just that when bail is granted, it not
be excessive
- Procedural due process: the procedures of BRA are sufficient to guarantee
fairness before rights are deprived
o Most of the time, gov’t will present evidence through proffer: prevent D
from cross-Xing, ensure safety of witnesses, limitations of discovery rules;
witness testimony becomes prior statement (impeachment material)
- Substantive due process: it’s not impermissible punishment before trial if it’s
regulatory, rather than punitive
o Not enough to just say “we’re regulating”: regulatory measure must be
rationally related to the end to be achieved, must be some degree of
proportionality (cannot be excessive)
o No real indication of how long we can detain, but CoAs have upheld some
periods of 2+ years as “not excessive”
There are a lot of false positives in predicting dangerousness.
Prosecutorial Charging Discretion
ABA Standards
- Don’t institute / cause / permit to continue
o Charges not supported by probable cause
o Charges in absence of sufficient admissible evidence to support conviction
- Prosecutor not obligated to present all of the charges which the evidence might
support
o Possible reasons for exercising discretion: prosecutor’s own reasonable
doubt as to guilt, extent of harm caused by offense, disproportion of
authorized punishment to offense, reluctance of victim to testify, improper
motives of complainant, etc.
- Prosecutor shouldn’t be compelled by superior to prosecute a case about which
prosecutor has reasonable doubt about guilt of accused
- In deciding to prosecute, prosecutor should give no weight to personal / political
advantage & disadvantage
- Prosecutor should not be deterred by tendency of juries to acquit people of
particular crime, if that crime involves serious threat to community
- Shouldn’t bring or seek charges greater in # or degree than
o Reasonably supported by evidence
o Necessary to fairly reflect gravity of offense
- Shouldn’t condition dismissal, nolle, etc. on accused’s reliquishment of right to
seek civil redress unless accused has agreed to the action knowingly, etc.
- Reread Inmates of Attica
Inmates of Attica v. Rockefeller
- Case seeking mandamus to get the officials prosecuted for their conduct in
response to Attica uprising
- If facts are true, failure to prosecute is an outrage. Probably didn’t prosecute b/c
the local citizens wouldn’t convict
- Reject claim:
o Standing: 3rd parties have no standing to contest P’s failure to prosecute
someone
 Prisoners might have an emotional stake, sure. But the remedy
(lock the guards up) doesn’t bring any legal benefit to the person
bringing the mandamus action
o Separation of powers concerns – how would courts supervise this
executive branch function?
- If there’s such a thing as an unacceptable reason for failing to prosecute, we never
even get to the point of asking into those reasons.
- NO judicially-enforceable limits on decision not to prosecute
Judicially-enforceable limits on decision to prosecute
U.S. v. Armstrong, selective prosecution claim
- Impermissible to select someone for prosecution b/c of race.
o Of course, not all classes are protected (Hollywood star hypo)
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To prove claim, must show discriminatory purpose + discriminatory effect
o Earlier case (Waite) had laid out this standard
- To get past motion to dismiss & get to discovery, must show that similarlysituated people are treated differently
o Is this evidence (similarly-situated people treated differently) evidence
of effect? Or of both effect and intent?
o On the other hand, need discovery to prove discriminatory purpose
 Notes say “need to provide @ least some evidence on both
prongs to get discovery”
o Require this b/c of sensitivity of prosecution work; presume good faith
- Remedy for selective prosecution: dismissal of indictment; vacate the conviction
McCleskey v. Kemp
- Statistics, while probative, are not enough to establish different treatment of
similarly-situated people (and so, are not enough to get past motion to dismiss)
o Or, notes say that they are enough to establish that, but weren’t
enough to establish intent / purpose
o Court seems to have accepted that the statistical study proved the
“effect” part
o Not going to infer intent / purpose from statistical showing
- It’s the decision to charge in light of such disparities that makes this fall into
“prosecutorial discretion” area
- Discriminatory purpose is nigh unto impossible to prove
- Another case: awareness of discriminatory effect is not the same as discriminatory
intent.
Blackledge v. Perry
- Violates due process to punish D for exercise of right (such as right to appeal, or
right to new trial)
- Though prosecutor may bring higher charges the 2nd time around and not violate
the Constitution, D is entitled to exercise those rights without fear of prosecutorial
vindictiveness
o This sort of conduct has a chilling effect on the exercise of the right
- Potential for vindictiveness may not enter into process; prophylactic rule
- Presumption is “remorseless,” (note 2, pp. 795-96); can only be overcome if P has
no opportunity to bring charges earlier
o But notes seem to suggest that it’s a rebuttable presumption of
vindictiveness, when P increases charge after D appeals or wins a
motion or some such.
- Thigpen v. Roberts (note case): leaves open the situation of when prosecutors are
really independent.
- BIG EXCEPTION: plea bargaining – there, there’s “vindictiveness” all the time
and it’s OK (see below)
- D’s remedy for upping punishment: P may not increase the punishment.
United States v. Goodwin
- Not presuming vindictiveness @ beginning stages, before trial
- D still might be able to show vindictiveness in the appropriate case.
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Things are too fluid in the initial stages; prosecution still investigating, not going
to presume about what P has done, or why
Prosecution is not allowed to up the ante to punish people for exercise of right
- If it happens after trial, assume vindictiveness
o DP violation unless P convinces judge that it wasn’t done for vindictive
reasons
o Courts are split: do not always demand “it was impossible to be charged
earlier,” but still do demand some showing; test is stringent
- Vindictiveness is still not allowed before trial, but won’t be presumed then either
(get back into problem of proof of motive)
Judicial Screening
- Preliminary hearing functions as a screening mechanism on prosecutor’s decision
to charge.
o Charge in the complaint is screened
o Adversary proceeding; D can be represented by counsel
o Once GJ returns indictment, no longer any right to preliminary hearing
- Advance if probable cause
o Low threshold standard: “could a reasonable person have reason to believe
this crime was committed?”
- Pros & cons of representation at this stage:
o D may be working at cross-purposes by trying to discover facts & by
laying foundation for impeachment (bind witness to a story) – discovering
facts requires friendlier relationship
o Rules for preliminary hearings allow hearsay – P can take advantage by
bringing in someone who won’t be testifying at trial; D can’t commit that
witness to testimony
o Perpetuate favorable testimony, testimony that you like
 If there’s a full opportunity to cross, & witness is unavailable later,
hearsay rules allow admission of that testimony
 Much more favorable to Ps than Ds
o Ds may not want to put on witnesses:
 Give P a chance to pin down for impeachment
 Free discovery of defense
 These 2 even worse if putting client on the stand
 Even if judge believes witnesses, may still let it go to jury
(credibility is their call)
o D might be able to convince prosecutor, judge to drop charges; if P knows
D’s evidence, might offer a more favorable plea
 Even if magistrate kicks the case, P can still bring it by going to GJ
Coleman v. Alabama
- Preliminary hearing is a “critical stage” of the proceeding, at which D is entitled
to representation
- Critical stage because:
o D can cross-ex to expose weakness of witnesses
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o D may be able to prevent bind-over (i.e., pre-trial detention)
o Preliminary hearing may have discovery function
This case only decided whether right to counsel attached in a ‘Bama preliminary
hearing, but it’s hard to imagine how preliminary hearing would work, without
these functions. So probably, there’s always a right to counsel at prelim hearing
Remedy for a violation: “Harmless constitutional error” review: assume harm,
and D gets a do-over without the constitutional violation, unless P can prove BRD
that the error was harmless
o Other ways of handling (other) violations: automatic reversal (irrebuttable
presumption of harm); D bearing the burden (habeas)
Grand Jury Screening
- No way to avoid this screening unless D waives rights
o But, bill of rights doesn’t incorporate this right; federal constitution only
guarantess GJ screening in federal felony proceedings
- Screening not the only function: also serves an investigative role. You keep a GJ
investigation going on, call people to present evidence, by the end they’re very
knowledgeable
- P must present to D, later on, the GJ statements of any witnesses it will call
o Provides tactical reason to call, say, an officer who only knows hearsay to
the GJ – he won’t be your witness at trial; D won’t get discovery
- After evidence, GJ deliberates and votes – if they no-bill, don’t have to say why
o P can just go before another GJ and do it again
 No double jeopardy limit
 No other legal restriction
 Don’t have to disclose that another GJ voted not to return
indictment (to the extent that that is even exculpatory, which is not
clear)
- Remedy for violations before GJ:
o If the issue is raised pretrial, & the trial court is persuaded, then indictment
may be dismissed – without prejudice
o If the issue is raised pretrial, and the trial court is not persuaded, then D
could (theoretically) appeal that, but a conviction in this context
automatically makes error harmless BRD
 This is a federal rule, not a state rule. States may (and some do)
treat this differently
 NY, for ex: overturn the conviction as a sanction
 One exception: a claim of unconstitutional, racially discriminatory
selection of GJ. That can be preserved nonwithstanding conviction
Costello v. US
- Grand jury can indict on any evidence, including evidence that will be
inadmissible at trial. Even if a D could prove that the GJ relied ONLY on
inadmissible evidence, the indictment does not fail.
o People have argued, unsuccessfully, that this rule should not apply to
unconstitutionally seized evidence – can fix hearsay, but can’t fix
unconstitutional seizure. But P can introduce that
“An indictment returned by a legally constituted GJ ... if valid on its face, is
enough to call for trial on the merits.”
o So, if P failed to present evidence on an element, and GJ returned an
indictment, doesn’t matter
US v. Williams
- Prosecutors are not required to disclose exculpatory evidence to GJ
o GJ has no duty to consider it – it exists only to hear evidence on P’s behalf
o Some states require presentation of such evidence
- Court has no general supervisory power to prescribe rules for the GJ, in the first
instance
o GJ not really part of any particular branch of government; no general
supervisory authority
o Certainly can enforce legislatively-created rules, such as dismissing an
indictment b/c of prosecutorial misconduct before GJ
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Fed. R. Crim. P. 6 – Grand jury rule
- Deals with procedure, secrecy (who may disclose & what may be disclosed).
Pretrial Motions & Discovery
- 5th amendment claims: constitutional limitations on discovery
Reiner: 3 elements / components of a valid 5th amendment privilege claim:
- 1) Compel the witness 2) to testify 3) in a way that incriminates himself
- Incriminating is more than an admission of doing something wrong – can be
anything that provides a link in the chain of evidence that would support a
prosecution
o Has to implicate you, not another person (and it can’t just be embarrassing
to be incriminatory)
o Not as broad as you fear bad things will happen if you testify (getting
whacked)
o Compelled production of documents (or other evidence) can be a
testimonial act, if the act of producing forces the witness to implicitly state
an opinion on something.
- So, what this boils down to (and the Ct.’s holding) is that a person can claim 5th
amendment privilege, and can be granted immunity, even if they deny all
culpability
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Prosecution can grant immunity; so long as grant of immunity is coextensive w/
5th amendment privilege
o Used to be transactional immunity: if you provide testimony abt a crime,
can’t be prosecuted for that crime, period
o Now, “use immunity”: can still prosecute you for the crime, provided that
I didn’t use anything that you told me to support the prosecution
 Constitutionality of this scheme upheld in Kastigar
“Testimonial”: must be product of intent to communicate, can’t be involuntary or
reflexive
Pretrial Motions – Federal Rules
FRCrP 12, Supp. pp. 232-34
- Talks about motions that may be made before trial, motions that must be made
before trial, procedure, waiver of issues through failure to file
FRCrP 21, Supp p. 246 – Transfer for trial
- Standards under which venue may, must be changed & procedure
Pretrial Motions – venue
- Venue: where prosecution will be taking place, where jurors drawn from
- Reasons to changes:
o Convenience: witnesses are in other locations (in federal prosecutions, D
would have to waive right to venue)
o Fairness / impartiality
- Constitutional provisions implicated
o Article III: crim. trial held in state of commission (not really a right, so
much as a directive)
o 6th amendment: right to jury trial in state & district of offense
o 5th & 14th: DP
-
Standard for determining fairness: 2 part inquiry (Murphy)
o Was the setting of the trial inherently prejudicial? Or
o Does the jury selection process of which D complains permit an inference
of actual prejudice?
- In practice, huge amount of deference to trial court
o So long as jurors say they can put aside prejudice and be fair, that’s
enough to justify discretionary decision not to change venue
U.S. v. Rodriguez-Moreno
- In federal system, venue for something like “gun use,” when that is used as part of
a continuous crime that spans several jurisdictions (like kidnapping) will lie in
any of the jurisdictions where you could’ve been prosecuted for the underlying
crime
- Dissent uses the “verb” test, which is still used by a lot of states:
o Look at the verb in the offense; where that happens is where venue will lie
McVeigh
- Too much publicity – attempt to impanel juries and keep questioning was a waste
of time
- Considerations: extent of coverage broader in OK than US; waste of time &
worse if you empanel and later move jurisdictions; if jury instructions will be
insufficient
- Where to move can be a huge concern if race is a factor, racial composition of
new location – judge could possibly get reversed if he owned up to deciding
where to move b/c of race
Nonconstitutional (statutory) discovery
- Not unlimited discovery b/c
o Fear D tampering
o D has constitutional restraints on what he must provide; not fair to make P
turn over everything
FRCrP 16, Supp. p. 240 – discovery & inspection
- P’s disclosure
o Gov’t must disclose any oral statement, made in response to interrogation
by person D knew was gov’t agent, if gov’t intends to use that
o Gov’t must disclose and make available: relevant written statements;
written record of oral interrogations (as above); D’s recorded GJ testimony
o If D is an organization, gov’t must disclose statements as above if person:
 Was legally able to bind D on subject of statement; or was
personally involved in alleged conduct & was able to bind D w/
respect to conduct
o Gov’t must provide D a copy of D’s prior criminal record
o Documents & objects material to defense; intended to be used in case;
item was obtained from or belongs to D
o Reports of examinations & tests – if in gov’t’s possession & if item is
material to defense, or if gov’t intends to use (expert stuff)
o Written summary of expert testimony
o None of this authorizes disclosure of written reports or internal
memoranda; also doesn’t apply (except as explicitly stated) to GJ stuff
- D’s disclosure
o If D requests disclosure of docs & objs, & gov’t complies, then D disclose
to gov’t similar items that it intends to use
o Same deal with reports and tests, though the requirements vary a touch
o Same deal with eperts
o Exempts from disclosure work product & statements made by / to D by /to
certain people
- Continuing duty to disclose
- Protective orders & sanctions for failure to comply
One thing’s for sure, Congress rejected discovery of witness lists (which is allowed by
some states)
Also, in terms of “material to preparing a defense,” defense = something that’s a shield
against gov’t’s case-in-chief. So you can’t use FRCrP 16 to backdoor discovery on a
selective prosecution claim; that is another defense that might prevail, but it is not
responsive to gov’t’s case in chief
Constitutional Discovery (what Ps must tell Ds)
- Provide floor for what states & fed must provide
Brady v. Maryland
- Selective disclosure of exculpatory evidence is serious prosecutorial misconduct
- Suppression by P of evidence favorable to accused, upon request, violates DP – if
that evidence is material to guilt or punishment
US v. Agurs
- Evidence of “obvious exculpatory character” creates a duty to disclose
- Established 4-part typology for when exculpatory evidence was discovered after
trial
o Although that typology was rejected in Bagley (below), the first part of it
may still be valid. When evidence is discovered that was unknown to both
sides, motion for a new trial based on newly discovered evidence granted
if the evidence “probably would have resulted in acquittal”
US v. Bagley
- P is required to disclose all evidence that is favorable to accused and material to
guilt or punishment
- Material = any evidence that, if disclosed, there was a reasonable probability that
the result of the proceeding would have been different.
o This is a very different standard from “harmless constitutional error”
o Includes impeachment evidence as well as exculpatory
o Reasonable probability = probability sufficient to undermine confidence in
the outcome
o Supplement, pp. 82-85: probability does not mean “more likely than not”;
the question is whether, in the evidence’s absence, D received a fair trial.
o Also, if there are multiple undisclosed items, you don’t look at them in
isolation – you go big picture.
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-
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Entirely clear now that we’re not distinguishing based on whether there was a
discovery request (wasn’t clear after Brady). Use the same rule for materiality
regardless.
Remedy for constitutional discovery violation is new trial
Some states use a more restrictive test for when P violated a specific discovery
request, as opposed to a general request.
Timing of disclosure & compliance: pretrial is ideal, but as long as disclosure is
done w/ enough time that the facts are usable at trial, that’s compliance
o If new evidence turns up during trial, courts have ways of giving Ds more
time
Another issue: who must have the favorable evidence for the obligation to attach?
o Easy case if it’s police or prosecutor, or if the office has it
o Gets stickier w/ other government agencies – the farther removed, the less
likely possession will create a duty to disclose.
Arizona v. Youngblood
- Failure to preserve evidence in the government’s possession doesn’t lead to a new
trial unless there was bad faith in the failure to preserve
o Didn’t care about bad faith in Bagley; but there, we knew which side the
evidence would benefit
o Plus, if we found DP violation w/o bad faith (or even if bad faith was
found), you can’t retry the case. Only possible remedy is dismissal
Defense disclosure – prosecution discovery
- Constitution imposes no obligations
- In imposing a statutory obligation, 2 ways to problems:
o Could run afoul of D’s constitutional rights
o Also, imposing sanctions for failure to follow could run afoul of D’s
constitutional rights.
Williams v. Florida
- Alibi notice rule doesn’t violate Due Process (D must provide notice of alibi
defense & witnesses)
o A rule requiring disclosure of defenses would violate due process if it
were not reciprocal – D giving P info, P giving nothing back. Wordias? v.
Oregon
- Also doesn’t violate the 5th amendment protection against self-incrimination
o Alibi notice rule just accelerates timing; doesn’t compel anything
- Would be unconstitutional, as a sanction for failure to comply, to preclude D from
testifying
- Witness preclusion can sometimes be constitutionally imposed
o But it’s not the only sanction, you could also read a little speech about D’s
conduct (which you don’t want read)
FRCrP 12.1 – Notice of Alibi Defense.
- Gov’t attorney can request D’s notice of alibi (absent request, D need not
provide), which must state
-
-
o Each specific place where D claims to have been
o Name, address, & telephone # of each alibi witness
If D provides that, gov’t has to disclose
o Name, address, telephone # of each witness the gov’t intends to rely on to
establish D’s presence at the scene
o Each rebuttal witness
Also talks about timing, continuing duty to disclose, sanctions, and
inadmissibility of withdrawn intention
This might sometimes create a strategic reason for gov’t not to request notice of
alibi – if gov’t doesn’t want to disclose its witnesses
Probably after Williams, no limit to disclosure of any and all defenses – alibi or
otherwise, any can be seen as “accelerating the timing,” and no defense is compelled by
the state
- Even if there aren’t explicit limits in disclosure rules though (like rendering
withdrawn intention to offer defense inadmissible), there may be implicit limits
o Otherwise, there’s nothing that’s “accelerated,” and the use of it is much
more like compulsion
Joinder & Severance
FRCrP 8, supp. p. 228 – Joinder
- Of offenses, when
o Of same or similar character
o Based on same act / transaction
o Connected w/ or are part of a common scheme or plan
- Of Defendants, when
o They are alleged to have participated in same transaction, or same series
of acts or transactions, giving rise to offense
o All Ds need not be charged in each count
 Doesn’t matter if there’s no overarching conspiracy count – so
long as it’s proper to join the Ds on some counts, you can bring a
whole bunch of other counts against one D
FRCrP 13, supp. p. 238
- Court may join separate cases if all the offenses & Ds could have been joined
FRCrP 14, supp. p. 238
- May sever or provide separate trials if joinder / consolidation appears to prejudice
D or P
- Before ruling on motion to sever, court can direct P atty to show it any statements
of D that P will be using
“Denial of severance” mantra: a defendant is not entitled to a severance just because
separate trials might afford a better chance at acquittal
- Courts are much more willing to sever trials when dealing with the “same or
similar character” type of joinder.
- If one person had bad acts evidence introduced against him / her, then the remedy
is a limiting instruction. Can argue that joinder should not be granted (or trial
should be severed) for prejudice, but this almost always loses.
If joinder becomes improper mid-trial (count is dismissed), courts will not treat that as
misjoinder, leading to a new trial. However, courts will allow Ds to argue prejudice
(which rarely wins, of course).
State v. Redlan
- Deals with severance on grounds of prejudice
- Wants to use alibi defense on one charge; preserve right of silence on other
o D might be prejudiced if he wanted to take the stand and testify as to only
one count, but could show “a strong need to refrain from testifying on the
other”
- Jury would use evidence of one crime in the impermissible propensity sense
(character evidence) against D
-
o But, there’s no prejudice if the evidence would be admitted at the severed
trials. So if it’s admissible under 404(b) for just the one crime (or through
some other rule), then this isn’t grounds to sever
Jury would combine the evidence, making it easier to convict
o Have to ask whether evidence is separate & distinct enough to allow jury
to evaluate it separately. Here, there’s nothing inherently unclear, and the
proof that would be offered is the same as if the trials were severed.
The Bruton problem:
- 2 Ds tried together. One of the co-Ds gave a confession, in which he named both
himself and his co-D
- Evidence of confession is admissible against the one but not the other
o If they’re inadmissible against you (or your client) then you have no
right to cross-examine. Maybe that’s where the confrontation clause
violation comes in?
- If the D who confessed doesn’t testify, then the co-D has no opportunity to crossexamine or confront his accuser. Confrontation clause rights violated
o Is it just about confrontation clause rights? What if Bruton’s Co-D
had taken the stand – would the evidence of the confession be
admissible against Bruton all of a sudden?
- Limiting instructions are not enough to prevent jury from using evidence
impermissibly; evidence is excluded
- If in a particular jurisdiction, co-Ds’ testimony is admissible against co-D,
then you don’t have a Bruton problem (but will have a Crawford problem)
- Only a jury trial rule – bench trials not affected by Bruton
US v. McVeigh
- Example of a motion to sever that wins (most don’t)
- Had Bruton testimony here; P would rather sever than give up Bruton testimony
o Redacting wouldn’t have worked (wouldn’t have made sense)
o Seating 2 juries – not a solution
o P not willing to forego testimony against Nichols
- “Antagonistic defenses” not enough to win
Speedy Trial
- Huge remedy problem – can’t fix things through a new trial
o Remedy for violation is dismissal
- Society has independent interest in speedy trials, regardless of accused’s
preferences
- Right to speedy trial begins @ charge. Before charge, delay will never violate
speedy trial right
o Pre-charge delay can (but almost never will) violate DP, but not speedy
trial rights. Will only violate if actual prejudice + impermissible reason
 One example of impermissible reason: tactical advantage, like
waiting for alibi witness to die
Barker v. Wingo
- Reject the “demand waiver” rule (i.e., demand your speedy trial rights or they’re
waived). Instead, 4-factor balancing test for evaluation of speedy trial claims:
- Length of Delay – depends on circumstances and complexity of case
o After a certain length, delay is “presumptively prejudicial” (which means
we go on to the rest of the test, not that we skip part 4)
o Guideline is that it’s about 1 year; but courts will perform the full test if
it’s getting close to that.
- Reason for Delay – varies, based on how good the reasons are
o Hamper the defense – heavily against gov’t
o Overcrowded courts / P negligence (less heavily, but still against gov’t)
o Missing witness (could justify appropriate delay); efforts made to locate,
how important witness was, why witness was missing
- D’s assertion of right
o D’s complaining gets “fairly strong evidentiary weight,” failure to assert
will make it difficult to prove violation (effectively demand-waiver)
o Get opposition to continuance motions on the record
- Prejudice to D
o Prevent oppressive pretrial incarceration
o Minimize anxiety and concern of accused
 “Cloud of suspicion” is talked about but not taken that seriously
o Limit possibility that defense will be impaired
Doggett
- Lived for 8 years not knowing he was indicted; gov’t hadn’t proceeded b/c of
negligence
- Here there was an ACTUAL presumption of prejudice, real burden shifting, not
just a trigger to reach the rest of the test
- This guy wasn’t living under a cloud of suspicion, wasn’t in jail; in some ways
hurt less than Barker
o Barker: you don’t always get hurt by having delays until your trial
o So, if we know someone isn’t asserting speedy trial rights, we can
assumed that he’s not as harmed, not as worried about prejudice
o But can’t make that assumption here; he didn’t know.
Guilty Pleas and Plea Bargaining
FRCrP 11, supp. pp. 229-32
- Court may take pleas of not guilty, guilty, or (sometimes) nolo contendere
- Considering & Accepting
o Court must advise D of certain rights & question D
o Court must ensure that plea is voluntary
o Court must determine factual basis for plea
- Plea agreement procedure
- Withdrawing Plea
- Finality of Plea
- Admissibility or inadmissibility – governed by FRE 410
- Recording proceedings
- Variance from rules is harmless error if it does not affect substantial rights
Courts are very picky about compliance with their plea rules, esp. since so many cases
disposed of by plea
Brady v. United States
- Guilty pleas are OK if they are “knowing, voluntary, and intelligent”
o Voluntary: unless induced by threats, misrepresentations, or promises that
are by their nature improper
 NOT saying that the threat of greater punishment makes plea
invalid – otherwise plea bargaining would be gone
 Court not as worried about this, b/c doesn’t think it’s a situation in
which innocent people will be induced to plead guilty – this would
make us not think of something as “voluntary”
o Intelligent: advised by counsel (competent, but not clairvoyant, counsel)
 Not “unintelligent” if D got the cost-benefit analysis wrong, such
as if SC promulgated a new constitutional rule.
 Doesn’t mean “smart,” but “well-informed”
o Are intelligent and knowing really the same thing? Do they get
subsumed? Or does “knowing” have separate requirements?
- D pled guilty to a death-eligible crime. Had either trial by jury w/ possibility of
death, or plea
o In another case (which applied retroactively), SC said that this
impermissibly burdened the right not to plead guilty & the right to a trial
Henderson v. Morgan
- Is about “intelligent” requirement
- D must be appraised of & must understand the substance of the charge, for the
plea to be valid
- DP requires “real notice of true nature of the charge”
- In this case, charge to which D pled wasn’t formally made, no explanation of
charge or representation by D counsel that he explained the charge
- D never understood that “design to cause death” was a requirement.
Listing of elements in charging document will probably be enough, so long as it’s
understandable (and not a technical legal term like “malice aforethought”
Not clear if it would be enough to establish a DP violation if pled charge wasn’t in
document and there was no evidence of D being told
o In Henderson, judge made an affirmative finding that D was never told
o If we have a silent record, and are assuming competent counsel, might
come out the other way
What if you had the Henderson facts except that, unlike Henderson, D acknowledged
facts that would prove the element he wasn’t told about (intent to kill)
- Court pointed to the absence of this as a factor in its decision
- Element is satisfied (ensures reliability), but D wasn’t informed and may not have
made the statement (fairness not ensured)
o It depends what you want the plea to be about – reliability or fairness
Have to look at whether element is “critical”; how easy to
- Can’t give a formula for “critical,” but an element that makes a difference
between a greater and lesser offense will probably be critical.
- It matters for the “easy to understand” analysis if D is a person of normal
intelligence or not
-
For “knowledge” / “intelligence,” also have to make sure that D is properly informed of
constitutional rights that he’s giving up
- Will NOT presume this from silent record; court’s responsibility
US v. Ruiz
- Impeachment info against gov’t witnesses doesn’t need to be disclosed for a plea
to be voluntary and intelligent
o Impeachment material goes to the fairness of trial, not whether the plea
was voluntary
o Added value of info to D is minimal, since D needs to know details of
gov’t’s case.
o Brady v. MD doesn’t make those kinds of distinctions
- P still had a continuing duty to disclose exculpatory evidence that came into its
possession – this was probably necessary
o Affirmative defense info might be seen as exculpatory
- What if in plea agreement, D had waived right to new information about
affirmative defenses? Would this get treated like impeachment info?
o My notes seem to suggest yes, but don’t provide an answer.
North Carolina v. Alford
- D pled guilty but protested & claimed innocence
- These types of pleas are constitutionally permissible, but D has no constitutional
entitlement to one; judges in practice will not grant them
- If the judge does accept it:
o If no plea colloquy, just “I’m innocent but want to plead,” how do you
know if plea is voluntary & intelligent?
o Factual basis inquiry allows judge to see: this guy will be found guilty
Bordenkircher v. Hayes
5 years if plead (2-10 range); reindict & seek life if you don’t
This doesn’t violate constitution
o Not a case of surprise
o Plea bargaining is all about give & take, negotiation, mutuality of
advantage – there’s always going to be threat of more punishment from
going to trial
o Don’t want to drive pleas back underground
- This isn’t like the vindictiveness cases:
o Those deal w/ unilateral imposition of more punishment after reindictment
(enhanced charges, Perry) or at sentencing (Pearce)
o No bargaining process there
Corbitt v. NJ
- Jury conviction, 1st degree murder = life; 2nd degree = up to 30
- No contest – judge can sentence to life or up to 30
- This may burden exercise of rights, but not every burden is constitutional
violation
- Not different from Bordenkircher in any way that’s significant
-
Situation might be different if:
- Threat to prosecute someone else if you don’t plead (“I’ll go after your son”)
o Can see risk of innocent people pleading to save another
- Difference between trial sentence and plea is HUGE (60 yrs. vs. a day) – here, we
can see innocent people having incentive to plead guilty
- What if P made veiled threats (“plead or it will get worse for you”) – I don’t
know as we ever resolved that
Broken Bargains
Santobello v. NY
- If the prosecutor promises to do something in exchange for D’s plea
(recommend), fails to do so, and there is no justification for failure / broken
bargain, there is a constitutional violation
o For “justification,” see, e.g., Brechner (below)
- But the remedy is left to the state courts:
o Could be specific performance of gov’t’s promise, before a new
sentencing judge
o Could be to allow D to withdraw plea, if he wants
- SC not setting the rule
- In practice:
o If D wants to withdraw & P doesn’t oppose, fine
o If P does oppose, court generally will not allow D to withdrawn unless
what P did was really egregious (and that’s more about punishing P than
protecting D)
- Wrinkle: what if gov’t promises to do something that it doesn’t have the power to
do?
o AUSA promises that if you plead, no deportation proceedings
o Withdrawal of plea does no good, too late; need specific performance
o Courts are split
Marby v. Johnson
- When we’re looking at broken bargains, we’re looking at what induced your plea.
What you knew at the time of pleading
- If gov’t withdraws a more favorable bargain and gives you less, but you know
about that and decide to plead anyway, tough.
Benchimol, note case
- If you bargain for P to do something like “take no position,” or recommend a
sentence, if you want enthusiasm, or a detailed set of reasons, bargain for it. D
isn’t entitled to it otherwise.
US v. Brechner
- If in exchange for plea, gov’t agrees to submit a 5K1.1 motion for downward
departure, and if D lies in “substantially assisting” the gov’t, or fails in any way to
conform, gov’t can decline to move for downward departure
- Even if lies aren’t “material,” they can make D a worse witness; P can’t argue that
D has overcome his past sins.
Rickets (note case): unless agreement says otherwise, prosecutor can unilaterally decide
there’s been a violation and decide to stop compliance
- After co-Ds sentences had been vacated on appeal, the D who pled and agreed to
testify (initially) refused to come back for retrial. Agreed to come back after he
heard about this, but then it was too late.
2 claims that will survive guilty plea:
- Ineffective assistance of counsel
- Guilty plea not knowing, intelligent, voluntary
Right to Trial
Duncan v. Louisiana
- Ds do have a DP right to jury trial
- Right applies to all non-“petty” offenses; to determine whether sth is petty
offense, look at authorized (rather than actual) punishment
- 2 years = serious, not petty
Baldwin v. NY
- No offense is petty if more than 6 months authorized as penalty
o Cutoffs for fines are more murky: SC: $5K can be petty; lower courts:
$10K can be petty
- If 6 mo. or less in prison is authorized, presumptively petty (can be rebutted)
o Only right to jury trial if additional penalties are so severe that they reflect
legislative determination that offense is serious
o No such case has been found yet
Lewis v. US:
- Multiple petty counts don’t create jury trial right; look @ each offense
individually.
Singer v. US
- D can’t compel bench trial by waiving right to jury trial; can condition bench trial
on P & judge approval
- That’s FRCrP 23(a); some states take a different view (and some by state
constitutional decision)
Williams v. FL
- No constitutional right to 12 person trial; 6 in noncapital cases is fine
- # must be large enough to promote group deliberation, provide fair possibility for
representative cross-sample of community
Ballew v. GA (note)
- Fewer than 6 person jury is unconstitutional
Unanimity
- Not required; 10-2 and even 9-3 OK
- Birch v. LA: and no, you can’t do 5-1
- Not a whole lot else to go on: Ct. says “we have no reason to believe that majority
jurors won’t talk to minority,” but that’s really not all that right.
Taylor v. LA
- Women, or any other group, cannot be systematically excluded from jury service.
- Ds have standing to challenge exclusion, even if not in the excluded group
- D has right to have jury venire drawn from fair cross-section of the community
- Case doesn’t say that petit jury actually chosen must mirror the community
- Does not need to be prejudiced
- Remedy: reversal & new trial
Duren v. Missouri – test for violation of “fair cross-section” requirement:
- Group allegedly excluded is “distinctive” in community
o Willis v. Zant: explains “distinctive group:
 Group is defined & limited by some factor (e.g. race or sex)

Common thread or basic similarities in attitude, ideas, or
experience runs through the group – a “flavor”
 Community of interest among members of the group such that
group’s interest cannot be adequately represented if group is
excluded from jury selection process
- Representation of this group in venires from which juries are selected is not fair
and reasonable in relation to the number of such persons in the community
o Castaneda v. Partida, D must show that the procedure employed resulted
in substantial underrepresentation
 Do this by comparing proportion of group in total pop to
proportion called to serve as jurors, over a significant period of
time
- Underrepresentation is due to systematic exclusion of the group in the jury
selection process; not necessary to show total exclusion
o Can be inherent in selection process; need not show discriminatory
purpose
o Maybe there’s nothing suspect about a state’s methods, but if there’s
strong evidence that another method would be more effective ...
Most things besides race & gender have failed, but there could be others
- E.g. of failed one: “Witherspoon excludables,” those who are always against the
death penalty, cannot be fair in penalty phase
- This is not a qualifying group, SC held – when dealing w/ exclusion from
conviction phase
o Anti-death penalty people are not historically disadvantaged (which isn’t
necessary to distinctiveness, but the factor will be argued)
- Questionable group: the elderly. State rule excuses ppl over 70 from jury service.
This would turn more on distinctiveness than anything else; other 2 would be
satisfied w/ this rule.
Numerousity goes more to underrepresentation; doesn’t really go to distinctiveness
After D makes a showing, P would have a chance to rebut
VOIR DIRE
- Even if the pool satisfies fair cross-section requirement, not all members will sit
- Bring in # of jurors, enough for peremptories; extras depend on length, how “hot”
trial is
- Ask questions to glean impartiality, enough for exercise of peremptories
- Judges have ENORMOUS discretion in what Qs are allowed
o If an issue is “inextricably bound up in the trial,” then refusal to permit
questioning may violate DP
Ham v. SC
- When does judge’s refusal to examine jurors on voir dire as to possible prejudice
against D violate DP?
o Omission of race questions – DP violation
o Omission of beard questions – not DP violations
-
Voir dire is generally w/in discretion of judge, but not always. Exceptions:
o Racial issues inextricably bound up in trial
 Hard to tell when this is; most judges ask questions
 Just having an interracial couple sitting there is not enough
o Turner v. Murray: if capital case & interracial crime
Salomone
- Challenges for cause rarely granted, pretty much will not be granted unless juror
says explicitly some variant of “I cannot be impartial in this case”
o Have to connect up bias questions to “so does this mean ...”
o But if a judge struck someone for cause even if they said “I can be
impartial,” would probably defer to that
Batson
- Prohibition of purposeful racial discrimination in striking jurors
- Language suggests we’re talking about both D’s and juror’s rights
- EP based ruling, not 6th amendment fair cross-section based
- The test:
o D must make out a prima facie case for discrimination through
peremptories
 All you need is evidence sufficient to warrant an inference of
purposeful discrimination (CA v. Johnson)
o P must offer a facially race-neutral reason for use of peremptories. Need
not be plausible, or even believable.
 No prosecutor with a shred of intelligence will lose here
o D must prove by preponderance that peremptories were used on basis of
race
 Just because the reason need not be plausible, doesn’t mean gov’t
wins. Reason must still be persuasive enough to prevent D from
winning in step 3
 Strikes for things like wearing dreadlocks & Malcolm X gear
would be OK
Powers v. Ohio and subsequent case – extend rules of Batson
- Can challenge strikes, even if you do not share the same race as those struck
- Applies to all lawyers (even criminal defense attys), even though 14th amendment
requires state action
- No gender-based peremptories either
Jury nullification, US v. Thomas (2nd)
- If the record discloses any possibility that a request to discharge a juror stems
from the juror’s view of the sufficiency of the evidence, the court must deny the
request to discharge
o This might be only upon retiring to deliberate
o Nullification is violation of juror’s oath, judge should not permit or
encourage
o But secrecy of jury deliberations is to be safeguarded, including from
counsel & presiding judge
CONFRONTATION RIGHTS
- Opportunity to cross is what’s important. Your confrontation rights are not
violated if witness doesn’t remember the events about which you want to cross.
Confrontation clause does not guarantee a certain amount of mileage out of cross
- Decided under the “harmless constitutional error rule
Maryland v. Craig
- 6th amendment does not categorically prohibit a witness from testifying outside
D’s presence at trial
- Several aspects of confrontation right:
o Cross-exam; jury can view witness demeanor; witness given oath &
testifying under oath; face-to-face
- To dispense with one (or perhaps more): state law must be necessary to serve an
important state interest; the reliability of the testimony must be otherwise assured.
- Part of what helped find necessity was that it was a case-by-case determination of
trauma to the child; no categorical ban on face-to-face testimony
- Probably more likely to be unconstitutional as more protections were removed, or
if these protections were applied to adults, for ex.
Olden v. Kentucky
- Confrontation clause includes the right to reasonable cross-examination
- Cross-examination may be more essential than face-to-face confrontation;
therefore this case would not come out differently in light of Craig. Hard to see
how a state policy could justify dispensing with cross (KG doesn’t think it could)
o May be 4 aspects of right protected, but cross is 1st among equals
Crawford v. Washington
- For testimonial hearsay, confrontation clause requires unavailability of hearsay
declarant and a prior opportunity to cross-examine the witness
o Not spelling out what “testimonial” is
- Nontestimonial hearsay is governed by traditional hearsay law and does not
implicate confrontation clause concerns
- Previously, rule was of Ohio v. Roberts: hearsay OK under CC if:
o Fits w/in “firmly rooted exception to hearsay rule,” or
o Particularized guarantees of trustworthiness
o That rule was abandoned; would have allowed ex parte hearsay, which is
bad
- Varying formulations of “testimonial”
o Ex parte in court testimony or its functional equivalent: affidavits,
custodial interrogations, depositions, or similar statements that people
would reasonably expect to be used prosecutorialy, etc.
o Extrajudicial statements contained in formalized testimonial materials
o Statements made under circumstances that would lead an objective
witness to believe that the statements would be available for later use at
trial (what type of objective witness)
-
-
o 911 call is the grey area
It’s the opportunity to cross-examine that’s important: if D didn’t take
opportunity, the testimony will be available. (unsure that this is how it will come
out, but KG thinks so)
Unavailability is a ConLaw standard; P must make a real effort to find the
witnesses
o May be a forfeiture exception (if D caused unavailability); can (probably)
use as basis for forfeiture a charge that has not yet been proved
o If you’ve invoked the 5th, you’re unavailable.
BRUTON REVISITED (confrontation)
Cruz v. NY – Bruton rule applies to exclude interlocking confessions, on the presumption
that a limiting instruction won’t be enough.
- Can’t use co-D’s confession to corroborate D’s confession
- Of course, if the co-D testifies, there’s no confrontation clause violation
Gray v. MD – redaction of co-D statements by replacing D’s name with *deleted* is not
enough to satisfy Bruton
COMPULSORY PROCESS
- D has right to compulsory process; right applies to getting docs too
- Real issues in these cases are when other, perfectly valid roadblocks get in the
way
Taylor v. Illinois: 6th amendment right to compulsory process does not prevent exclusion
of a witness for willful violation of discovery rules.
Chambers v. Mississippi: exclusion of critical evidence (3 people who heard confession),
coupled w/ state’s refusal to permit cross of W that D called (the guy that confessed –
voucher rule), denied D a trial and fundamental standards of due process.
- Sometimes confrontation right trumps exclusion through hearsay rule
- Right to confrontation does not depend on witness being technically “adverse” to
accused
- Court seems to be arguing for hearsay exception that doesn’t exist, “but this stuff
was reliable”
- Nothing inherently wrong with either policy – it’s the combination; ct says: “in
reaching this judgment, we establish no new principles of ConLaw, nor does
decision diminish state authority”
- Similar to Washington v. Texas: bar against coparticipant witnesses
o Compulsory process does more than get witness to court; also require you
to be able to put witness on
 This policy wasn’t evenhanded, let states put on such witnesses;
not clear how this would come out if it were balanced
Rock v. Arkansas: complete bar to hypnotically-refreshed testimony violated some rights
or other
- Are these cases all on compulsory process rights?
D’S RIGHT TO TESTIFY AT TRIAL
Griffin v. Arkansas: 5th amendment forbids both comments by P on D’s silence, or
instructions that jury can use such silence as evidence of guilt.
- D has a right to a “no inference instruction,” Carter v. Kentucky, but no right not
to have no-inference instruction; judge can give one regardless. Lakeside v.
Oregon
- If a guy’s been Mirandaized, after he remains silent, can’t use that against him.
Doyle v. Ohio
- Prosecutor’s comments may violate right, like:
o “Evidence we were privileged to hear”
o If there’s a reason for D to have ran, you didn’t hear it
o Prosecution’s evidence is unrebutted, uncontradicted
- Also, judges can’t take this into account at sentencing
- But, if D testifies, prosecutor can close on “D has sat there through the whole
trial, could shape his testimony based on what he heard.”
- D waives 5th amendment privilege by taking the stand
Jury:
-
Can’t inquire into external influences (like pot), have to preserve sanctity of
deliberations
Only way to overturn is to prove bias, or to have external influences like jury
tampering. In practice, this is so very hard.
Sentencing
- Used to be more determinate, then discretion given to judges
- Another way to frame issues: do rules of CrimPro apply to sentences?
- The long and arduous journey:
Williams: DP & confrontation rights attached at trial, but not at sentencing
In re Winship: DP requires proof BRD of every fact necessary to prove the elements of
the crime charged
Mullaney: can’t make accused disprove an element (mens rea for murder, presumed once
P has established an intentional killing)
- Patterson v. NY: but, can call something an “affirmative defense” and shift the
burden to D that way (heat of passion); it’s not an element of the crime, doesn’t
run afoul of Winship
USSG comes along; first (but not last) set of guidelines
McMillan: can allow facts establishing mandatory minimums to be found by judge, by a
preponderance
Jones v. US – Thomas switched sides, but didn’t decide the constitutional issue –
statutory construction
Apprendi: any fact that increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to jury and proved BRD.
- No principled way to distinguish by calling one a “sentencing factor” rather than
element; no longer sufficient to call sth a “sentencing factor”
- Exception for recidivism (for the sake of following precedent) – AlmendarezTorres
o Recidivism doesn’t relate to commission of offense, + the guy admitted it
o A-T in doubt
- Seemed to be on course to overrule McMillan, but practical concerns carried the
day; upheld in Harris v. US
o Distinguished McMillan: that case was about setting minimum. So...
- Facts setting the outer limits of sentence are elements of crime for constitutional
analysis, but w/in range, can impose minimum terms based on factors found by
judge.
Blakely: applies Apprendi to determinate sentencing
- In determinate sentencing, the “maximum” is NOT the statutory maximum, but is
the maximum that you’re eligible to receive based on the facts proved @ trial, w/o
any additional judicial factfinding
o Sentencing factor within that scheme, if found by a judge or found by less
than BRD, violates Apprendi – even if the factor still brings you to a level
less than the technical statutory maximum
- Factors for judges still OK if the jury’s verdict authorizes the statutory maximum;
just not OK if jury’s verdict authorizes something less (as it does in determinate
sentencing)
- Also exceptions for
o Prior conduct – Almendarez-Torres
o When judicial factfinding mitigates
o Mandatory minimum – setting a floor, rather than going above maximum
Booker / FenFen: applies Blakely to federal sentencing guidelines
- If they’re mandatory, they violate the constitution, for the reasons in Blakely
- But now the USSG are advisory; one factor for courts to look to
o Sentences assessed for reasonable; it’s prima facie reasonable to follow
the guidelines
o You’d never know the decision was handed down, but for the confusion.
LONGER SENTENCES ON RETRIAL
NC v. Pearce: DJ requires credit for time already served
- Whenever judge imposes more severe sentence
o Reasons for doing so must “affirmatively appear”
o Reasons must be based on objective information concerning identifiable
conduct on part of D, occurring after time of original proceeding
 That latter part is no longer a requirement
o Factual data must be made part of record so that legitimacy of increase is
reviewable
- Court begins limiting right immediately after Pearce:
o Chaffin v. Stynchcombe: rejected in case of jury sentencing (how could
2nd jury be vindictive?)
o Alabama v. Smith: when D pled, was sentenced, then plea was vacated,
vindictiveness is not “more likely than not”
- Wasman v. US: Pearce created presumption of vindictiveness; when presumption
applies, sentencing authority can rebut; when it doesn’t, D must affirmatively
prove vindictiveness
Texas v. McCullough – situation where presumption of vindictiveness won’t apply, or
will be less likely:
- Trial judge granted motion for new trial – she’s not vested
- D chose to be sentenced by judge, speaks to fairness
- Sentence “increase” does not happen when there are 2 different sentencers
- On-the-record, logical, nonvindictive reason
- Even if presumption did apply, can be overcome by objective information
Not really as interested in the chilling effect anymore (judicial efficiency reasons not to
be), more so about vindictiveness in fact
But, lots of facts that KG can make up to swing this – fuzzy area.
Double Jeopardy
- 5th Amendment: no person shall be put in jeopardy or punished 2x for same
offense
- Prevents 3 things:
o 2nd prosecution for same offense after acquittal
o 2nd prosecution for same offense after conviction
o Multiple punishments for same offense
Fong Foo – acquittals are not appealable. Once you have one, that’s it
- Doesn’t matter how wacko the acquittal is, or if the acquittal is based on error
(say, in the jury instructions)
US v. Scott: label of “dismissal” or “acquittal” isn’t important. D is “acquitted” for DJ
purposes when the ruling of the judge represents a resolution in D’s favor, correct or not,
of some of the facts charged
- Harlan’s Fong Foo concurrence prevails
- Reversal on appeal for error (say, in jury instructions) does not imply an acquittal
of any of the elements charged.
o Contrary rule would put a HUGE damper on D winning on appeal
o But, if the error was that the evidence was insufficient as a matter of law
to support the conviction, that kind of ruling operates as acquittal. US v.
Burks
o Conviction on lesser-included offense, followed by reversal for trial error
and retrial, allows only retrial of the lesser-included offense. Green
 Read conviction on a lesser-included offense as acquittal of the
greater offense
- If judge grants D a JNOV, and we have a jury verdict of conviction (duh), double
jeopardy not implicated
o No further proceedings need be held to convict D, so DJ can’t be
implicated
- No SC case has ever said anything but that an acquittal is the end of the road
o Unclear what would happen in case where D bribed judge for acquittal;
some commentators say it shouldn’t be treated as DJ acquittal
o Bribing jurors, at least, won’t lead to waiver of DJ right
Ashe – estoppel in DJ, the ol’ “spruce-up”
- Found collateral estoppel in DJ clause
- Jury had to find that Ashe wasn’t a robber; they found that an armed robbery took
place and that Knight (one V) was robbed
o If jury had to have found a fact in D’s favor, that will bar relitigation of
that fact under DJ
- Look at what they had to have decided if they followed the law. Turner v.
Arkansas
o So in felony murder hypo: if they acquitted D of murder, they “had” to
have decided that he wasn’t the robber. That will estop prosecution for the
robbery (don’t ever conclude that nullification was going on)
- Practical ramifications
o May affect Ps’ joinder decisions
o For Ds:





Very hard to arrange things such that they can invoke Ashe
protections; really hard to turn a trial into a single-issue event
 Even if you argue witness credibility, might destroy chance
at collateral estoppel
Collateral estoppel can only be used by Ds
It’s D-specific – doesn’t apply if 2nd prosecution involves another
D
Doesn’t apply to inconsistent verdicts in single prosecution (cannot
use acquittal on Felony Murder to attack robbery)
BUT – if inconsistent verdicts between 2 trials, could invoke Ashe
against the 3rd.
Jeopardy attaches:
- When jury is empanelled and sworn (jury trial)
- When first witness is sword (bench trial)
Double jeopardy and mistrial:
Double Jeopardy / Mistrial analysis:
1) Ask if D asked for or consented to the mistrial
a. If YES, the analysis is completely different; retrial will be OK unless D
proves P’s “intent to goad.” Oregon v. Kentucky
2) If #1 answered NO, then our next question is: was there a finding of “manifest
necessity,” exercising sound discretion – did ct. go through articulation of
balancing
a. Buzzwords: “Manifest necessity for act, ends of public justice would
otherwise be defeated, exercise sound discretion”
b. If answer to that is NO – then retrial is barred – Jorn (judge declared
mistrial without investigating D’s interests, asking D what he wanted)
i. Have to notice that D has interests in the analysis, even if you
don’t have to come out in favor of them
3) If answer to #2 is YES (most cases) – then ask, is this an instance of “manipulable
error” – not “did P manipulate,” but “is this a situation where they could have
manipulated; taking a beating and could have injected error”
a. If answer is YES – then retrial barred (e.g. Downum – get a mistrial to
spruce up the case. Kind of a revisionist reading of Downhum)
b. If answer is NO – retrial OK (e.g. Summerville – defect in indictment was
not instance of manipulation)
DOUBLE JEOPARDY “SAMENESS” – 2 questions
- “Definitional aspect”: look at 2 statutes to see whether they define the same crime
o Test of sameness: whether each crime requires proof of an element that the
other does not (if so, it’s different). Blockburger
 This is the ONLY measure of DJ sameness, after Dixon repudiated
Grady
o If the 2 offenses are the “same” for purpose of barring consecutive
sentences, also the “same” for purpose of barring successive prosecutions
-
o Lesser included offenses are the “same” offenses as the greater, including
offenses for DJ purposes
 Lesser included offense = fewer elements than the greater, but the
elements of the lesser all exist w/in the greater
 Conviction on lesser included offense bars 2nd prosecution on
greater, and vice versa
 Harris gloss on Blockburger: when a crime itself is listed as an
element, treat that as a lesser-included offense
 Even though for, say, felony murder, a particular felony is
not necessary, so the elements aren’t identical (strictly
speaking)
o Hunter v. MO: operates as a rule of statutory construction: if it’s unclear
whether the legislature intended to cumulatively punish for offenses that
are “same” under DJ, assume they did not intend to (armed criminal
action)
 @ close of trial, this requires that one of the convictions (usually
the lesser) is vacated) – it would violate DJ for conviction to just
stand there, even w/o punishment
 But, if legislature did intend to cumulatively punish, that’s fine.
DJ not really a restraint on the legislature. It’s for courts and
prosecutors. In same trial context, only protection that DJ affords
is from more convictions & punishments than legislature means
you to have
 And, cumulative punishment can include consecutive
punishment
 This rule only operates in the same prosecution context – it does
not permit successive prosecutions
 Court has not decided whether DJ allows legislature to authorize
cumulative punishments for “same” offense in subsequent trials
“Unit of prosecution”: court must define scope of offense, purpose of proscribed
conduct, and D’s conduct to see how many “units” occurred
o Ex: is each successive day of joyriding a crime?
BIG PICTURE
Single trial:
- Charge 1 & Charge 2
- Convictions on both
- Same under Blockburger? (look at elements)
o If NO: multiple conviction / punishment OK under DJ clause
o If YES: ask clear legislative intent to punish cumulatively?
 If NO: DJ requires vacating one conviction
 If YES: then multiple conviction & punishment are OK under DJ
clause
Successive prosecutions (think Brown or variant thereof):
- Offense in Prosecution 1; Offense in Prosecution 2; same under Blockburger?
- This one can be and is raised before any prosecution gets underway
-
-
o If NO: any “supplement”** to Blockburger apply?
 If YES, “supplement”** applies, then 2nd P is barred
 If NO: 2nd prosecution OK (it almost always is)
o If YES, they are the same under Blockburger, there are a couple of
exceptions* to the usual rule (which we didn’t study). Ask, do the
exceptions* apply?
 If YES, exception applies, then 2nd prosecution OK
 If NO (most of the time): the second prosecution is barred by
double jeopardy
Norm is NO / NO, or YES / NO; but sometimes not
Exceptions* to Blockburger
o Here’s one: say we prosecute someone for aggravated assault. After
prosecution & conviction, the victim dies.
o Couldn’t prosecute for murder @ the time of the prosecution
Supplement** to Blockburger:
o Harris (if thinking of it as a variant rather than gloss)
o Ashe collateral estoppel; offenses were not the same: had different victims
Dual sovereignty exception:
- Clearest rule there is: if there are two sovereigns, forget EVERYTHING about
DJ. No offense sameness; other sovereign can ALWAYS go after you.
- Different sovereigns are:
o Federal gov’t and any state
o States and other states
o Municipality counts as part of the state
- A shot is fired from N Dakota to S. Dakota; hits a Native American, who is
mortally wounded, and shot with an unlicensed gun.
o What possibilities? ND, SD, Native American Sovereignty, Feds.
o 4 prosecutions, all separate sovereigns