CrimPro
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Table of Contents
I. Due Process .......................................................................................................................... 1
II. The Right of Counsel........................................................................................................ 2
III. Charging Decisions ......................................................................................................... 4
IV.
Pretrial Detention ........................................................................................................... 5
V.
Guilty Pleas ......................................................................................................................... 6
VI.
Discovery ........................................................................................................................... 8
VII.
The Criminal Trial ......................................................................................................... 8
VIII.
Sentencing ................................................................................................................... 10
IX. Double Jeopardy ........................................................................................................... 10
X. Appellate and Collateral Review .............................................................................. 12
I. Due Process
Due Process & Incorporation
The 14th Amendment’s guarantee of “due process of law” does not necessarily
require a grand jury indictment in a prosecution by the state for murder. (Hurtado)
The 14th Amendment guarantees a right of jury trial in all criminal cases which –
were they to be tried in federal court – would come within the 6th Amendment’s
guarantee. Any crime punishable by two years in prison triggers the right to a jury.
(Duncan)
Due Process Theories:
1. Rule of Law
2. Bill of Rights
3. Accuracy
4. Fundamental Fairness
Due Process in Criminal Procedure
States may place the burden of proof in an incompetency hearing on the defendant
without violating the Due Process Clause. (Medina)
Due process requires that a citizen held in the United States as an enemy combatant
must be given a meaningful opportunity to contest the factual basis for that
detention before a neutral decision maker. (Hamdi)
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Mathews 3-part test for due process
1. Private interest at stake and injury threatened
2. Risk of error and probable value of procedural safeguards
3. Costs and benefits are weighed
II. The Right of Counsel
Scope of the Right
In the adversary system of criminal justice, any person hauled into court who is too
poor to hire a lawyer cannot be assured a fair trial unless counsel is appointed for
him. (Gideon) [felony!]
Misdemeanors with actual imprisonment triggers right to counsel at trial (Scott)
A suspended sentence that may result in incarceration may not be imposed if the
defendant did not have counsel at trial. (Shelton)
Counsel on Appeal, Indigency, and “Critical Stages”
States, after appointing counsel for an indigent’s first appeal as of right from a
conviction, are not required to provide counsel for the defendant’s subsequent
discretionary state appeals and for his applications for review in the U.S. Supreme
Court. (Moffit)
Having to pay for a trial transcript (which is required for an appeal) is not
constitutional unless there is some method of waiving the fee for indigent
defendants (Griffin)
State must provide appointed counsel for the first direct appeal as of right (Douglas)


Equal Protection v. Due Process
NO requirement of absolute equality, the purposes of discretionary review are
different
Defendant initiates appeals process, just because appeal exists doesn’t mean that
not appointing counsel is unfair, defendant is using the appellate process as a
sword NOT a shield
Right to jury trial does not attach to petty crimes. (> 6 months imprisonment)
(Douglas/Baldwin)
Ineffective Assistance
To obtain relief due to ineffective assistance of counsel, a criminal defendant must
show that counsel's performance fell below an objective standard of reasonableness
and that counsel's deficient performance gives rise to a reasonable probability that,
if counsel had performed adequately, the result of the proceeding would have been
different. (Strickland)
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1. Deficient Performance
 “Unreasonable under the totality of circumstances”
 Deferential standard (strong presumption of reasonable performance)
 Hindsight bias must be avoided
 Strategic decisions are “virtually unchallengeable”
2. Prejudice
 Reasonable probability that results of the proceedings would have been
different
 Totality of circumstances
 Assumes “law-abiding” judges and juries
 Presumed prejudice:
o Actual constructive denial of counsel
o Conflict of interests (Cuyler)
o State interference
o Complete breakdown (Cronic)
Performance and Prejudice
In a capital case, counsel has a duty to make all reasonable efforts to learn what they
can about the offense, including obtaining the prior conviction file to discover any
mitigating evidence and to anticipate the aggravating details. (Rompilla)
Performance
[Terry] Williams v. Taylor (2000)
Failed to conduct investigation into childhood/background
Total failure to investigate constitutes deficient performance
Wiggins (2003)
Inadequate investigation (PSI/social services records) = deficient performance
Prejudice
Nix v. Whiteside (1986)
Threatening to reveal perjury ≠ prejudicial
Kimmelman (1986)
Failing to file motion to suppress (with an illegal search) can be prejudicial if there
is a reasonable possibility that admitting evidence changed the outcome
Lockhart (1993)
Failing to secure windfall ≠ prejudicial (result of sentencing ≠ unfair or unreliable)
Glover (2001)
Change in amount of actual jail time = prejudicial
Multiple Representation
In order to establish a violation of the 6th Amendment concerning multiple
representation, a defendant who raises no objection at trial must demonstrate that
an actual conflict of interest adversely affected his lawyer’s performance. (Cuyler)
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Case
Objection
Glasser
Holloway
Cuyler
Mickens
Yes, by ∆
Yes, by counsel
No
No
Notice Affects
Performance?
Yes
Yes
Yes
Yes
No
Maybe?
No
No
Performance
Strickland Objectively unreasonable errors
Sullivan
“Actual conflict” affected performance
Mickens
“Significantly” affected performance
Result
Ineffective
Ineffective
Vacated/remanded?
Effective
Prejudice
Reasonable probability
NO (presumed)
Waiver
The state cannot constitutionally force a lawyer upon a defendant who it literate,
competent, and understanding, and voluntarily exercised his informed free will in
waiving his right to the assistance of counsel. (Faretta)
1. NO ineffective assistance when representing pro se
2. NO serious or obstructionist conduct, or self-representation can be terminated
Standby counsel is not required to remain silent, but must only act in accordance
with how the defendant wishes to present his own defense. (Wiggins)
Two requirements:
1. ∆ = actual control over case presenting to jury
2. Standby counsel should not be allowed to destroy the jury’s perception that ∆ is
representing himself
A defendant does not have a right of self-representation on appeal. (Martinez v.
Court of Appeals of California)
Counsel of Choice
A trial court erroneously depriving a criminal defendant’s choice of counsel (when
the defendant has the means to hire an attorney) entitles him to reversal of his
conviction. (Gonzalez-Lopez)
A defendant who is able to stand trial but is unable to represent himself may
proceed pro se or may appoint them counsel. (Indiana v. Edwards)
III. Charging Decisions
Prosecutorial Discretion
Courts are not permitted to make discretionary decisions about the possible
prosecution of individuals, that is the responsibility of the prosecutor. (Inmates of
Attica)
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Intent (purpose) to discriminate is required (McCleskey)
To establish a selective-prosecution case, the defendant must show that the
government declined to prosecute similarly situated suspects of other races.
(Armstrong) To get discovery, ∆ must get something fairly sophisticated, “Similarly
situated” is unclear exactly what this means (probably a substantial #)
Strategic Prosecution
A passive enforcement policy under which the Government prosecutes only those
who report themselves as having violated the law or who are reported by others is
constitutional. (Wayte)
The plain language of §1001 admits no exception for an “exculpatory no”. (Brogan)
Grand Juries and Screening Procedures
Hearsay evidence may be presented to a grand jury. (Costello)
The prosecutor is not obligated to present exculpatory evidence to the grand jury.
(Williams)
Joinder and Severance
The government may not charge in the same indictment different persons with
committing offenses of “similar character”. (Velasquez)
When defendants properly have been joined under Rule 8(b), a district court should
grant a severance under Rule 14 only if there is a serious risk that a joint trial would
compromise a specific trial right of one of the defendants or risk the jury from
making a reliable judgment about guilt or innocence. (Zafiro)
Rule 8 = formal (look at the text of the indictment)
Rule 14 = discretionary
IV. Pretrial Detention
Excessive Bail and the Bail Reform Act
Bail set at a figure higher than an amount reasonably calculated to assure the
presence of the accused individuals was excessive under the 8th Amendment. If a
higher bail is required, there must be a hearing where evidence is presented to
justify the heightened amount of bail. (Stack v. Boyle)
The Bail Reform Act of 1984, which allows a federal court to detain an arrestee
pending trial if the government demonstrates by clear and convincing evidence after
an adversary hearing that no release conditions “will reasonably assure…the safety
of any other person and the community”, is not facially invalid given the Act’s
legitimate and compelling regulatory purpose and the procedural protections it
offers. (Salerno)
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Bail Reform Act of 1984
Does the case
fit (f)(1)
or (f)(2)?
= YES
= NO
Are both (d)(1)
and (d)(2) true?
(c) Detention hearing
(e) Rebuttable
presumption may
arise
Are conditions needed to
ensure appearance
and community safety?
(b) Release on
recognizance,
unsecured bail
(d) Temporary
detention up to 10 days
(c) Conditional
release
Under (g), is there clear and
convincing evidence that no
conditions can ensure
appearance and community
safety?
Pretrial detention
Speedy Trial
The appropriate standard for the speedy trial right is a balancing test in which the
prosecution and defendant’s interests should be weighed. The four primary factors
are: (1) length of delay, (2) reason for delay, (3) the defendant’s assertion of his
right, and (4) prejudice to the defendant. (Barker v. Wingo)
To prosecute a defendant following investigative delay does not deprive him of due
process, even if his defense might have been somewhat prejudiced by the lapse of
time. (Lovasco)
An extraordinary length of delay between indictment and arrest violates the 6th
Amendment right to a speedy trial as long as (1) the government was negligent in
pursuing the defendant and (2) the defendant was unaware of the indictment until
his arrest. (Doggett)
Barker
Lovasco
Doggett
Basis for
Challenge
Speedy trial clause
(6th Amendment)
Due Process clause
Speedy trial clause
(6th Amendment)
Prejudice
Liberty
Cloud
Result
No
10 mos. Jail then
free on bail
No
Yes
Ok
Yes (a
little)
No
Ok
Yes (2
witnesses died)
Maybe
Due Process (SoL) Speedy Trial
Lovasco
Barker
Offense-------Indictment-------Trial
Doggett
Indictment-------Arrest
V. Guilty Pleas
Substitutes for Trial
No
NOT Ok
(Unconstitutional)
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After a guilty plea is entered and a defendant is effectively judged and convicted, he
may not raise a double jeopardy claim. (Broce)
A plea made by a defendant claiming innocence can still be valid; the court must
look at the evidence and whether it was voluntarily and intelligently given. (Alford)
Three Parts to Rule 11B
1. Advising and questioning the defendant (a litany of things the defendant should
be informed of)
2. Voluntariness of the Plea
3. Determining the factual basis of the plea (basically just an admission)
Lawyers and Plea Bargaining
The test applied to challenges to guilty pleas based on ineffective assistance of
counsel is similar to the Strickland test: (1) whether counsel’s performance was
deficient, and (2) whether counsel’s constitutionally ineffective performance
affected the outcome of the plea process. (Hill)
Mandatory sentencing miscalculation (6-21 mos. too high) Strickland standard: (1)
Ineffective assistance? YES (2) Prejudicial? YES (Glover)
Hill = more of a guessing game
Glover = concrete amount of time would be smaller, specific and predictable
Voluntariness
The threat of the death penalty is not coercive if the guilty plea was entered
intelligently and willingly. (Brady)
A prosecutor may carry out a threat to reindict the defendant on more serious
charges if he does not plead guilty, as long as the serious charges are justified.
(Bordenkircher)
Subject Matter Limitations
Plea wiring does not violate the Constitution, because it simply is not enough to
overcome the will of some innocent persons and cause them to plead guilty. Almost
anything lawfully within the power of a prosecutor acting in good faith can be
offered in exchange for guilty pleas. (Pollard)
There is no per se rule against release-dismissal agreements. (Rumery)
O’Connor’s multi-factor balancing test: *Presumption = agreements are invalid
1. Knowledge/experience of defendant (especially counsel)
2. Nature of charges (more serious = more coercive)
3. Legitimate criminal justice objective
4. Judicial supervision
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Absent some affirmative indication that the agreement was entered into
unknowingly or involuntarily, an agreement to waive the exclusionary provisions of
the plea-statement Rules is valid and enforceable. (Mezzanatto)
Enforcement of Plea Agreements
The state courts must decide whether the State’s failure to keep a commitment
concerning the sentence recommendation on a guilty plea requires a new trial.
(Santobello)
The defendant’s acceptance of the prosecutor’s proposed plea bargain does not
create a constitutional right to have the bargain specifically enforced. (Mabry)
A defendant may be retried after his sentencing and imprisonment for failing to
comply with the terms of his plea agreement. (Adamson)
VI. Discovery
The Brady Obligation
The suppression by the prosecution of evidence favorable to an accused upon
request violates due process where the evidence is material either to guilt or to
punishment, irrespective of the good faith or bad faith of the prosecution. (Brady)
**Material and exculpatory evidence in the government’s control (material if but for
the disclosure the outcome would have been different)
The prosecution has an affirmative duty to disclose evidence that would be
favorable to the defendant. (Kyles)
The Constitution does not require the Government to disclose material
impeachment evidence prior to entering a plea agreement with a criminal
defendant. (Ruiz)
Defense Obligations
The privilege against self-incrimination is not violated by a requirement that the
defendant give notice of an alibi defense and disclose his alibi witnesses. (Williams)
Due Process: Balanced test, legitimate truth-seeking purpose
Self-incrimination: Accelerated disclosure, not “compelled”, continuance = same
effect
A judge’s decision to exclude the testimony of undisclosed witnesses is permitted
and does not violate the Compulsory Process Clause. (Taylor)
VII. The Criminal Trial
Jury Size and Composition
A five-member jury does not satisfy the jury trial guarantee of the 6th and 14th
Amendments. (Ballew)
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In order to establish a prima facie violation of the fair cross-section requirement, the
defendant must show (1) that the group alleged to be excluded is a “distinctive”
group in the community, (2) that the 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, and (3) that this underrepresentation is due to
systematic exclusion of the group in the jury selection process. (Duren) **Venire
ONLY!
Peremptory Challenges
The State’s privilege to strike individual jurors through peremptory challenges is
subject to the commands of the Equal Protection Clause, if the defendant objects
then the State must provide a racially neutral explanation for their challenges.
(Batson) **Petit jury ONLY!
1. Prima facie case: (totality of circumstances test), distinct group, single instance is
enough (pattern is not necessary, but is relevant), statements and motions by
prosecutor matter
2. Burden shifts to state, race-neutral explanation required
3. Trial court decides whether purposeful discrimination
In making a case for purposeful discrimination in jury selection, a defendant may
rely on all relevant circumstances, including statistical analysis of the venire, sideby-side comparison of struck and empaneled jurors, disparate questioning, and
evidence of historical discrimination. (Miller-El)
Hernandez (1991): bilingual jurors = race neutral
Purkett (1995): hair length/facial hair = race neutral (not that it’s a GOOD reason,
but it must be genuine)
J.E.B. (1994): gender is an impermissible basis for peremptory challenge
Powers (1991): white ∆ has standing to raise Batson claim for black jurors (race of
defendant = immaterial)
McCollum (1992): defense can make peremptories subject to Batson that
prosecutors may question
Wainwright v. Witt: prospective juror lacks impartiality only if he/she has views
strong enough to prevent or substantially impair performance on the juror in
accordance with law
Publicity
There are two types of possible prejudice due to publicity: (1) presumed and (2)
actual. (Skilling)
Prosecutorial Misconduct
If a prosecutor’s closing argument misstates or manipulates the evidence or
implicates other specific rights of the accused, then it deprives the defendant of a
fair trial, but the weight of evidence and jury instructions also matter. (Darden)
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Trial Testimony and Inferences
A prosecutor may, in summation, call the jury’s attention to the fact that the
defendant had the opportunity to hear all other witnesses testify and tailor his
testimony accordingly. (Agard)
VIII. Sentencing
Proportionality
Three strikes laws do not violate the 8th Amendment’s prohibition against cruel and
unusual punishment. (Ewing)
The 8th and 14th Amendments forbid imposition of the death penalty on offenders
who were under the age of 18 when their crimes were committed. (Simmons)
Discretion and Rules at Sentencing
Discretion & Rules at Sentencing
Stat.
Stat.
Judge finding (hate crime)
Stat.
Stat.
GL max
Judge
Stat.
Williams (1949)
Judge selecting
sentence from
range
GL min
Add’l Stat.
Judge finding (firearm)
Stat.
Stat.
McMillan (1986)
Apprendi (2000)
Increase in floor of Increase in ceiling
sentencing
of sentencing
Stat.
Blakely (2004)
Booker (2005)
A judge may use information inadmissible at trial in making a sentencing decision
for the death penalty. (Williams)
Blakely applies to the Federal Sentencing Guidelines and requires that all facts that
increase the defendant’s punishment beyond the high end of the Guidelines range
applicable to the offense of conviction be proved before a jury beyond a reasonable
doubt. As a result, the provision of the federal sentencing statute that makes the
Guidelines mandatory is stricken, requiring district courts to instead focus on a
broader range of factors in imposing sentences and appellate courts to review
sentences for “reasonableness”. (Booker)
The federal appeals courts may not presume that a sentence falling outside the
range recommended by the Federal Sentencing Guidelines is unreasonable. (Gall)
IX. Double Jeopardy
“Jeopardy”
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Dismissal: grounds relating to guilt/innocence = no retrial
NOT above = retrial ok (Scott)
Acquittal: (Fong Foo) no retrial or appeal by gov’t
Trial begins
Verdict
Conviction: (∆ appeal)
(Bell) retrial ok, original jeopardy resumed
(Burkes) except if sufficiency of evidence
Mistrial
Conviction but j. nov.: (Wilson) appeal ok, retrial ok
gov’t request: manifest necessity? (ex: hung jury) retrial ok
(reinstates guilty verdict)
∆ request: prosecutor’s intent to provoke/goad = no retrial (Kennedy)
A verdict of acquittal is final and cannot be reviewed without putting the defendants
twice in jeopardy in violation of the Fifth Amendment’s double jeopardy clause.
(Fong Foo)
When an issue of ultimate fact has once been determined by a valid and final
judgment, that issue cannot again be litigated between the same parties in any
future lawsuit. (Ashe)
The circumstances under which a defendant may invoke the bar of double jeopardy
in a second effort to try him are limited to those cases in which the conduct giving
rise to the successful motion for a mistrial was intended to provoke the defendant
into moving for a mistrial. (Kennedy)
Unless a state has a rule of non-finality of midtrial judicial acquittals, the Double
Jeopardy clause prohibits the judge from reconsidering that acquittal. (Smith)
“Same Offense”
Blockburger (1932): whether each provision requires proof of a fact which the other
does not
A B C & B C = same offense
A B C & B C D ≠ same offense
BOTH WAYS! (offense 1 <--> offense 2)
The Double Jeopardy clause bars the prosecution of a defendant on substantive
criminal charges based upon the same conduct for which he has previously been
held in contempt of court. (Dixon)
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Brown (1977): double jeopardy cannot be avoided by prosecutors who simply
divide a single crime into a series of spatial/temporal units
Harris (1977): when conviction of a greater crime cannot be had without conviction
of the lesser crime, double jeopardy bars prosecution of lesser after conviction of
the greater
Garrett (1985): Harris does not apply to enterprise crimes
Grady (1990): functionally overrules Blockburger
Dixon (1993): reverses course and overrules Grady
X. Appellate and Collateral Review
Appeals and Harmless Error
Habeas Corpus